Unions and campaign groups have called for an overhaul of whistleblowing legislation to close loopholes which mean many offshore workers receive next to no legal safeguards when raising alarms.
The demands come amid reports that workers have been victimised and issued with ‘Not Required Back’ (NRB) status for flagging concerns, despite North Sea oil and gas companies having publicly committed to root out blacklisting practices.
Current legislation – namely the Public Interest Disclosure Act (PIDA) 1998 – makes it unlawful to subject a worker to negative treatment or to dismiss them because they have raised a whistleblowing concern. Yet the nature of offshore employment arrangements mean those protections may not apply to workers and seafarers.
As Caitlin Comins, legal officer at the UK’s whistleblowing charity Protect told Energy Voice: “Crucially, UK whistleblowing law does not apply beyond UK territorial waters and does not include self-employed or off-payroll workers, who constitute the majority of offshore workers.
“This combined with the lack of any legal or regulatory requirements for offshore companies to have whistleblowing policies, leaves offshore worker at the mercy of unscrupulous employers.”
Protect, along with other worker representatives, is therefore campaigning for a new legal bill that would ensure those protections are extended, secure legal aid support for whistleblowing cases and introduce mandatory standards for employers to follow when it comes to procedures.
“Offshore workers and seafarers must be empowered to voice their concerns and feel protected when they do. In addition, their employers must have robust systems in place to ensure that their staff can speak up,” she added.
To qualify for protection under the PIDA, the claimant must provide a “protected disclosure” with information on their concern.
The disclosure has three main elements. They must reasonably believe the concern shows a category of wrongdoing; must reasonably believe the concern is in the public interest; and must raise their concern in accordance with the law.
These can be made internally to their employer or externally to a “prescribed” person or organisation – though the protections offered to the individual can vary depending on to whom the statement is made.
For eligible workers, PIDA prevents staff from being dismissed or treated detrimentally if they make such a disclosure, both in employment and after employment.
Ms Comins explained: “That includes references – particularly refusal to provide a reference or spreading rumours that might lead to, say blacklisting or NRB, which is an issue for offshore workers.”
“If you are a worker or an employee and that happens to you, then you might be able to bring a claim for compensation. But if you’re genuinely self-employed, then there’s no recourse under the law as it stands at the moment.”
Protect usually advises people to make these disclosures to their employer first. However, even if they do there are no legal or regulatory requirements on companies to have policies on how to investigate concerns, or to train managers on how to respond to whistleblowing.
This too should be marked as a “key area for reform”, she says.
The government is currently reviewing its whistleblowing framework, the evidence-gathering stage of which is set to continue into the autumn, and Protect hopes many of its recommendations will be incorporated into this new framework.
Whistleblowing and a ‘just transition’
The topic has emerged as a major concern amongst campaigners pursuing a just transition for energy workers.
This was highlighted in a recent report prepared by Platform and supported by the charity, which among other things listed “effective and trusted grievance and whistleblowing procedures” in its ten key demands to secure such a transition.
One participant in a workshop supporting the report was ‘Francis’, an offshore plater.
“If you raise a complaint you’ll just get NRB’d. Blacklisting still happens. I used to be a spokesperson for the group and got stood down, put on standby. [On one job], two scaffolders were representatives for the workers and they got taken off the rig,” he told the authors.
Referring to the report, Ms Commins added: “Certainly from what we’ve seen in our experience is that because they are such dangerous environments, there might be a number of procedures in place, but whether those are actually followed is another question.
“There may be quite a lot of lip service paid to it but actually, if you raise concerns it’s not necessarily addressed, it could lead to negative repercussions, or you’re expected to raise low-level concerns but not the really serious ones.
“There needs to be more in place to force employers to have those procedures and to follow them and to treat their whistleblowers well.”
It follows other concerns raised by unions around exploitative practices in the sector, especially with regards to legal loopholes and waivers affecting offshore workers and seafarers.
Asked about its position on the new framework, RMT general secretary Mick Lynch told Energy Voice: “RMT doesn’t have policy to support this Bill but reform to whistleblowing and freedom of information legislation is needed, particularly in sectors like offshore oil and gas where workplace visits by trade unions are almost impossible and the functioning of health and safety committees in line with post-Piper Alpha legislation is not always what it should be in a multiple hazard industry with a significant back log of safety critical maintenance work.”
He said RMT believes NRB is still being practised by oil and gas firms and that the sector’s response to the current wave of industrial action by workers would be a “key test of industrial relations offshore over the remainder of this decade”.
The union advised its members across transport and offshore to contact their reps and Branch Secretary to raise issues that might come under the umbrella of whistleblowing, “particularly where there is concern that the law has been or is being broken.”
For Protect and unions, it’s clear that change is needed. Yet Ms Comins said successful delivery of any new framework will come from a culture that welcomes whistleblowing.
“The massive thing is really culture and how you embed a strong culture,” she said.
“There’s a few elements to that; you need to have the policies and procedures, which are the basic element. You need to follow them and show that you’re following them.”
“At every level of the organisation you need to have the very clear message that whistleblowing is encouraged, that it’s welcome, that it’s supported.
“It’s something beneficial for both workers and the business, which is the practical reality of it – and that needs to be demonstrated day in, day out.
“And crucially, employers also need to be assessing the risk of victimisation to workers and really have taking on that duty of care to their workers and the responsibility they have for them.”
Protect offers free, confidential whistleblowing advice, either by phone or via its website.