Do whistleblowing rules encourage staff to speak out or keep tight-lipped? Alison Clarke asks whether current legislation is working
There aren’t many pieces of legislation that employers should be thankful for, but the Public Interest Disclosure Act is one of them. Introduced in 1999, it encourages employees to blow the whistle on scams in the workplace – from unsafe practices in a hospital to overtime fraud in an office.
Basically, if the disclosure is in the public interest and falls under one of the prescribed headings (see far right), the worker will be protected.
So has the legislation made any difference? Guy Dehn, director of Public Concern At Work, believes so. He says people are twice as likely to blow the whistle today than they were six or seven years ago.
“Enlightened employers are big fans of the legislation,” says Dehn. “And it stands to reason, because if an employee has a reasonable suspicion about something and is not acting maliciously, they can save their employer a lot of embarrassment. After all, most employers do not want to kill their patients or to go to jail for defrauding their clients.”
There have been some high-profile cases. Just last week, Leeds Employment Tribunal awarded former Wakefield Prison officer Carol Lingard £477,600 in compensation after she won her claim for constructive dismissal and victimisation for whistleblowing. The Prison Service also had to pay legal costs of around £90,000. This is believed to be the highest award to date in a public sector claim.
The legislation was introduced after years of lobbying by Dehn, who realised that some of the biggest disasters – Clapham rail crash, Piper Alpha, Zeebrugge – might have been averted had staff not been too scared to voice their concerns.
“It was obvious that staff needed safeguards to encourage them to come forward,” he says. “And there just weren’t any.”
However, not everyone agrees that the legislation is hitting the spot. Amanda Harvey, head of employment at Devonshires solicitors, recently represented Chichester Diocesan Housing Association in proceedings brought against it by a former employee who complained of unfair and wrongful dismissal.
Harvey says that the test of whether or not a disclosure is made in good faith needs clarification, because employers do not always even realise “that a protected disclosure has been raised”.
This, coupled with poor record keeping, can “mean that an employer who legitimately starts disciplinary proceedings is exposed if an employee tries to hijack the process by making a complaint. Although the complaint may not be in ‘good faith’, that can be difficult to prove”, she says.
Although Dehn agrees that the ‘good faith’ test is not clear enough, he thinks that, on the whole, the legislation works.
“If employers use the legislation as a means to address their internal accountability and to encourage staff to raise concerns, then it works well. But there are organisations that don’t have that attitude and there are employees who, when leaving, will see if there is a claim they can make. To some extent, this is just a reflection of employment law today.”
And the government thinks much the same. According to the Department of Trade and Industry, the legislation has generally worked well since its introduction in 1999.
The right procedure
Whatever the strengths and weaknesses of the law, however, Dehn says that employers should have policies that make clear what whistleblowers should do if they want to report a concern.
“What is important”, he says, “is to create a culture where employees feel able to tell their employer when something is going wrong, and where they are not victimised as a result. The policies therefore need to spell out the procedure to follow in the event that an employee has a genuine and honest concern.”
And because whistleblowing is essentially a governance tool, he recommends that employers do not use legalistic terms, but language that everyone understands.
According to Victoria Phillips, head of the Employment Rights Unit at trade union solicitors Thompsons, the problem is that, although lots of employers – particularly in the public sector – have whistleblowing policies, employees are largely unaware of these guidelines.
“The legislation is important, but workers have to make sure that if they have a complaint, they must use the policy properly. That’s not always easy,” she says.
Dehn agrees that the issue is how employers use and communicate their policies to staff. A crucial point, as the Norfolk Constabulary found out to its cost, when one of its employees blew the whistle on a potential criminal scam that ended up with charges being brought against the perpetrators.
Detective inspector Adrian Church explains: “A member of staff told his line manager that he suspected some of his fellow officers were involved in what might be a criminal matter. However, after a while, because it appeared that management had not dealt with the matter appropriately, it had to be passed to the professional standards department to deal with. By that stage he was feeling unsupported.”
This was despite the fact that the force had introduced a detailed 10-page policy on ‘confidential reporting’ the year before the complaint was made. But detective chief inspector Steve Fernandes, the deputy head of professional standards, argues that having a policy is no panacea.
“Policies are one thing, but reality another. We know that there is a lot going on in the constabulary that is not reported. It may be that the mechanisms for raising concerns are not marketed well enough, or that there are cultural issues that prevent people from coming forward. Our aim is to prevent, not detect, and this experience has certainly pointed up areas where we need to improve.”
Norfolk Constabulary is putting those lessons into action. In July 2004, it introduced a confidential telephone hotline for whistleblowers. This was already on the cards, but was accelerated by the incident, and the force is about to launch a confidential e-mail service for internal reporting of malpractice and corruption.
It also publishes a quarterly magazine which is circulated every three months alongside payslips, advising officers how to avoid complaints and pushing the message of integrity and honesty. It is about to put together a joining pack of important policies for recruits, with whistleblowing top of the list.
So it’s little wonder, as Phillips says, that workers often have doubts about making complaints to management.
“Lots of workers worry that if they express a concern, management will back each other up and the whole exercise will backfire on them,” she says. “It takes courage to blow the whistle and employers need to recognise that.”
This point is reinforced by Ray Britton, HR director at equipment and tool hire specialist A-Plant.
“We had a situation recently when some junior members of staff told us – after someone else from a different department had blown the whistle – that they’d had suspicions that their manager was stealing from the company. They didn’t want to say anything in case they were wrong and got into trouble as a result.”
A-Plant has taken that lesson on board and recognises that it needs to do more to get its message across. Employees who have a ‘reasonable and honest suspicion’ that a scam is going on should be encouraged to come forward.
As a result, the company has decided to introduce an employee hotline. To publicise it, it is thinking about giving every member of staff a credit card-style confidential telephone number card.
“Companies need to get the message across that staff should not be worried about coming forward” says Britton. “That involves having more than just a policy, it’s also about what happens in reality. Our staff now know that we’ll support them if they make an honest allegation because they can see that’s what happened in this case.”
Home Office whistleblowing case settled out of court go to www.personneltoday.com/30657.article
To find out about whistleblowers’ rights go to www.personneltoday.com/25906.article
Whistleblowing and the law
The Public Interest Disclosure Act 1998 protects people who ‘blow the whistle’ about malpractice at work. It covers all employees and most workers. The self-employed are excluded, as are volunteers, the intelligence services and the army. There is no qualifying period of service.
Only the following disclosures are protected:
- A crime
- The breach of a legal obligation
- A miscarriage of justice
- Issues relating to health and safety
- An environmental risk
- An attempt to conceal any of the above.
To qualify for protection, the employee or worker usually has to make the disclosure to their employer, a government minister, an outside regulator or a legal adviser.
However, they will still be protected if they make a wider disclosure, as long as they can show: that they made the disclosure in good faith; that they believed the information to be true; that they will not gain from it; and that it was reasonable to make the disclosure, given the circumstances.
Employees and workers can complain to a tribunal if they feel their employer penalises them for bringing the complaint. If they are dismissed because they blew the whistle, the dismissal would be automatically unfair. Compensation is unlimited.