The Justice System’s Failure to Protect Whistleblowers: An Examination of Cost Orders, SLAPPs, and NDAs

Why legal pressure matters

Whistleblowers are often praised after the event. Before the event, they may face a very different reality: disciplinary pressure, professional isolation, threatened proceedings, confidentiality warnings, settlement pressure, costs exposure, reputational attack and uncertainty about where they can safely disclose information.

That distinction matters. A right that exists only after a worker has lost their job, health, income or professional standing is not full protection. It is a remedy after damage. The public interest requires earlier protection: safe reporting routes, lawful evidence handling, clear limits on confidentiality clauses, proportionate litigation conduct and procedural safeguards against claims designed to exhaust the person who spoke up.

The draft article rightly identified three pressure points: costs, SLAPPs and NDAs. Each can operate separately. Together they can create a structure of silence. The person raising the concern may be told that speaking further will breach an agreement, that defending themselves will be expensive, that publishing or reporting outside the organisation will invite proceedings, and that even a meritorious concern may not protect them from years of litigation stress.

The whistleblowing framework

GOV.UK describes a whistleblower as a worker who reports certain types of wrongdoing, usually something seen at work, and states that the wrongdoing must be in the public interest. Public guidance also states that a whistleblower should not be treated unfairly or lose their job because they blow the whistle.

Acas explains the employment-law position in more detail. It states that most people are protected if they make a qualifying disclosure, including workers, employees, agency workers, apprentices, NHS practitioners, student nurses, student midwives, police, office holders and some self-employed NHS professionals. It also identifies groups who are not usually protected, including genuinely self-employed people, volunteers with no enforceable employment contract, non-executive directors, members of the armed forces, and lawyers learning of matters covered by professional privilege.

The framework is therefore important but incomplete. It protects some people in some circumstances. It does not remove every contractual, civil-litigation, reputational or costs risk that may surround a disclosure. That is where costs pressure, SLAPPs and NDAs become important.

Costs pressure

Costs can silence even where the underlying concern is serious. In ordinary civil litigation, the risk of paying the other side's costs can shape behaviour from the first letter. A person with limited resources may settle, apologise, withdraw or stay silent because they cannot carry the financial risk of defending a claim, even where they believe the disclosure was justified.

Employment tribunal claims operate differently from ordinary civil claims, and costs do not simply follow the event in the same way. That difference matters. But whistleblowing disputes do not always remain inside the employment tribunal. A disclosure can trigger defamation threats, confidentiality claims, data protection allegations, breach of confidence allegations, injunction risk, professional complaints, regulatory disputes or satellite litigation. Costs pressure can therefore arrive through routes outside the whistleblowing claim itself.

The issue is not only the final order. It is the threat architecture. Letters before action, repeated demands, high-value damages figures, warnings about indemnity costs, requests for undertakings and threats of urgent applications can all have a chilling effect before any court has tested the merits. A public-interest framework that ignores pre-action pressure misses much of the practical problem.

SLAPPs and lawfare

Strategic lawsuits against public participation are not defined by ordinary disagreement. The concern is litigation or threatened litigation used to suppress participation in matters of public interest by causing cost, delay, stress or reputational pressure beyond what properly conducted litigation requires.

England and Wales now has a limited statutory anti-SLAPP mechanism in the economic-crime context. CPR 3.4 allows the court to strike out a claimant's statement of case where the claim is a SLAPP claim within section 195 of the Economic Crime and Corporate Transparency Act 2023 and the claimant has failed to show that it is more likely than not that the claim would succeed at trial. That is a significant development, but it is not a complete answer for all whistleblowing contexts.

The limitation is practical. Some whistleblowing concerns involve economic crime. Others involve safeguarding, discrimination, harassment, public procurement, public health, professional misconduct, regulatory failure, environmental risk, housing, care, education or abuse of power. If anti-SLAPP protection is too narrow, a whistleblower may still face proceedings where the issue is plainly public-interest speech but not within the statutory economic-crime route.

NDAs and settlement pressure

Non-disclosure agreements are not inherently improper. Confidentiality can be legitimate where it protects trade secrets, private information, settlement terms or sensitive commercial material. The problem arises when an NDA is drafted or used in a way that suggests a person cannot make a protected disclosure, report misconduct, cooperate with regulators, speak to law enforcement, obtain professional advice or disclose information required by law.

GOV.UK guidance states that confidentiality or gagging clauses may try to prevent a worker from revealing workplace information, but those clauses are not valid where they try to prevent a worker from making a whistleblowing disclosure. That protection is important, but it may not be enough in practice if the clause is broad, intimidating, technical or backed by threats of repayment, damages or litigation.

The SRA warning notice on NDAs is particularly important where solicitors draft or advise on settlement terms. It says the SRA is concerned to ensure NDAs are not used to prevent reporting to regulators or law enforcement, or to prevent disclosures protected by law. It treats an NDA as improperly used if it seeks to prevent or deter a person from making a protected disclosure under the Public Interest Disclosure Act 1998 or other permitted reports and disclosures.

The public-interest concern is clarity. A whistleblower should not need to litigate the meaning of a confidentiality clause before knowing whether they can report wrongdoing. If the exception exists but is buried, unclear or contradicted by aggressive enforcement language, the practical effect may still be silence.

The combined chilling effect

Costs, SLAPPs and NDAs are often analysed separately. Whistleblowers experience them together. An employer or institution may deny wrongdoing, require confidentiality, threaten breach of contract, warn about costs, challenge status, frame the issue as misconduct, and suggest that external disclosure will be unlawful. Each step may be presented as ordinary legal protection. Together, they can make speaking up feel impossible.

The chilling effect does not require a final judgment. It works through uncertainty. The worker may not know whether they are protected, whether the disclosure was to the correct person, whether the NDA is enforceable, whether the evidence can be used, whether the opponent will sue, whether insurance covers defence costs, or whether a tribunal or court will see the matter as public interest or private dispute.

That uncertainty is worse for marginalised whistleblowers and people without legal advice. The person most exposed to wrongdoing may be the least able to carry the costs and risks of disclosure. A protection system that relies on after-the-event litigation may therefore protect the most resilient whistleblowers while leaving the most vulnerable silent.

A practical reform test

Reform should be measured against a practical question: does the law protect the public-interest information, the person disclosing it, and the route through which it is disclosed?

On costs, reform should reduce the financial punishment risk for those who reasonably raise public-interest concerns. That does not mean immunity for false or reckless allegations. It means recognising that ordinary costs pressure can be used to suppress accountable speech before any court reaches the merits.

On SLAPPs, reform should not be confined to a narrow category if the public-interest harm is broader. Early dismissal, costs protection, judicial case-management tools and sanctions for abusive litigation should be accessible where proceedings are used to silence matters of public interest. The test must be rigorous enough to filter weak abuse arguments but strong enough to deter oppressive claims.

On NDAs, reform should require plain-language carve-outs for protected disclosures, regulator reports, law-enforcement reports, legal advice, medical support and disclosures required by law. Where solicitors are involved, the professional conduct position should be visible: an NDA must not be used to mislead, intimidate or deter permitted reporting.

The evidence route

For whistleblowers, the practical route begins with a disciplined chronology. What was disclosed? What information supported it? Who received it? Was it framed as a public-interest concern? What happened next? What threats, settlement terms, costs warnings, confidentiality clauses or legal claims followed?

Evidence handling must be careful. A public-interest concern does not give permission to take documents unlawfully, publish confidential material recklessly, breach privilege, expose third-party personal data or ignore reporting restrictions. The safer route is to preserve lawful records, seek advice before wider disclosure, keep the public-interest issue separate from personal grievance where possible, and record pressure tactics precisely.

For organisations, the evidence route runs the other way. They should be able to show that disclosures were assessed, that retaliation was prevented, that settlement terms did not silence protected disclosures, that legal threats were proportionate, and that complaints or regulatory reports were not obstructed.