The whistleblowing charity, Public Concern at Work, (PCW) has recently published a 5-year review of its activities and whistleblowing developments.
The review, Whistleblowing:Time for Change covers examples of whistleblowers' experiences, a focus on whistleblowing in the health and financial services sectors and an analysis of the types of concerns raised. The review also includes recommendations from PCW about future reform of the Public Interest Disclosure Act 1998 (PIDA).
PCW provides a free and confidential advice line and it reports that there has been "a huge increase" in demand for its services with a 25% increase in whistleblowing cases since 2011. An analysis of the calls made to the advice line reveals that:
- 68% of callers had raised concerns openly;
- 9% had raised the matter confidentially with their identity disclosed only to those investigating the concern;
- 2% remained anonymous
- 69% of callers had tried to raise a concern before contacting PCW.
The top three types of concerns raised through the advice line were:
- Financial malpractice, covering fraudulent transactions such as falsifying invoices/expenses and incorrect reporting to third parties;
- Ethical concerns, relating to the conduct of staff and breach of data protection/confidentiality
- Patient safety concerns including unsafe staffing levels and poor clinical practice.
The health, care, education, local government and financial services sectors were the top sectors for concerns. Interestingly, the retail sector was in the top six sectors for the first time in 2015 with cases in that sector doubling between 2014 and 2015.
PIDA inserts provisions into the Employment Rights Act 1996 (ERA) which provide workers with the right not to be subjected to any detriment on the ground that they have made a “protected disclosure”. Further, any dismissal for making a protected disclosure is automatically unfair and no qualifying period of service is required. In spite of this, the review clearly shows that whilst many whistleblowers are appreciated for their disclosures in the workplace, many are not. Worryingly, 80% of whistleblowers experienced negative final outcomes:
- 29% alleged that they were victimised;
- 28% were dismissed;
- 24% resigned;
- 2% alleged that they were bullied.
On a more positive note, where PCW was contacted for advice before a concern was raised, the outcomes were significantly better. There was a 26% increase in positive outcomes in the handling of the concern and with no personal consequences for the individual. The clear advice from PCW is that advice should be obtained at an early stage. Other good news is that awareness of PIDA has increased to 33% in 2015 from 26% in 2013.
What is of concern to PCW and others wanting to encourage whistleblowing in the workplace is that there was a small, but continuous fall in the number of individuals willing to raise a concern about possible corruption, danger or serious malpractice at work. The figure stands at 81%, a slight fall from 83% in 2013 and 85% in 2011.
A particularly surprising statistic is that where Employment Tribunal proceedings were pursued, only 12% of whistleblowing claims brought in 2011-13 were successful. This raises the possibility that the Employment Tribunal process may not be fit for purpose in terms of whistleblowing claims and that further reform of PIDA is required. An analysis of those claims showed that the main type of wrongdoing was discrimination and harassment followed by work safety and financial malpractice.
It was back in 2013 that PCW set up the Whistleblowing Commission and subsequently prepared a Whistleblowing Code of Practice which recommended that organisations should have well-publicised, written procedures dealing with whistleblowing complaints. Looking ahead, in 2016/2017 PCW will be developing that Code of Practice into a benchmarking tool. The purpose of this is to provide "a uniform measurement of success in whistleblowing arrangements".
In addition, PCW is concerned that there is a gap in the legal provisions giving protection from detriment and dismissal. Many people such as job applicants, volunteers, interns, non-executive directors and self-employed workers do not qualify for whistleblower protection and PCW recommends that PIDA should be expanded to include additional categories of workers.
In the meantime, there are other developments to note in the health and financial services sectors.
In October 2016, Dr Henrietta Hughes takes up her role as the new National Guardian for NHS Trusts in England. The first National Guardian resigned after only two months in the post earlier this year. The need for an independent National Guardian for the NHS was a key recommendation of Sir Robert Francis QC in his "Freedom to Speak Up" review in February 2015. The aim of the National Guardian is to lead a cultural change to encourage healthcare staff to raise concerns about patient care. This will include liaising with the "Freedom to Speak Up" Guardians in NHS Trusts and 57 of these have been appointed so far in NHS Trusts across England.
As for the financial services sector, the Prudential Regulation Authority (PRA) and Financial Conduct Authority (FCA) have introduced new whistleblowing provisions to complement the Senior Managers and Certification Regime. The purpose of the changes is to encourage staff to raise concerns without being fearful of any adverse repercussions. Since 7 March 2016, there has been a requirement to appoint a whistleblowers' champion who has responsibility for overseeing how effective whistleblowing procedures are within the organisation. However, this role does not extend to actually dealing with any whistleblowing concerns that have been raised. Since 7 September 2016, firms must set up independent whistleblowing channels to enable concerns to be raised. Interestingly, the disclosures that can be raised through these channels are more extensive than the six specified qualifying disclosures set out in section 43B of ERA:
- Criminal offences;
Breach of legal obligation;
- Miscarriages of justice;
- Danger to the health and safety of any individual;
- Damage to the environment;
- The deliberate concealing of information about any of the above.
In terms of recent case law developments, in the case McTigue v University Hospital Bristol NHS Foundation Trust the EAT had to decide whether an agency worker could bring a whistleblowing claim against an end user (the organisation hiring the worker’s services) even if that worker is employed by the agency. For further details see here.
Finally, the Court of Appeal was expected to hear the employer's appeal in the caseChesterton Global Ltd v Nurmohamed on 11 and 12 October 2016. However due to a lack of court time the hearing did not go ahead and will be relisted with a new date to be confirmed. This case was the first to consider what is meant by "in the public interest". For further details of the EAT decision see here.