The latest report by Sir Robert Francis looks at how employers in the NHS should deal with whistleblowers fairly. But what do his proposals for “guardians” mean for HR? Virginia Matthews investigates.
We now know that there was at least one formal complaint made about Jimmy Savile’s behaviour at Stoke Mandeville Hospital – by a patient’s father – but that it was ignored. It’s thought that many more complaints, across the NHS and of course at the BBC, went unheard or were kept under wraps by managers not wanting to disrupt the status quo.
Last month, Sir Robert Francis’ Freedom to speak up review of whistleblowing in the NHS proposed making it harder for something so horrific as the Saville case to slip through the net in the future.
Following his 2010 report into what went wrong in the Mid-Staffordshire NHS Trust, where hundreds of patients died due to failures in care, and a review in 2013 as to why this happened, the latest Francis report looks at ways in which NHS staff can feel comfortable raising concerns about their working environment.
Chief among its recommendations is that every NHS trust should appoint an independent whistleblowing “guardian” to give support and advice to staff, and to help ensure that raising concerns becomes part of normal working life.
In addition, Francis has proposed the appointment of an independent national officer to review how complaints are handled and advise NHS employers on how to proceed.
But opinions differ as to whether these guardians should be aligned with or deliberately distanced from HR. In his report, Francis could even be seen as suggesting that HR’s defensiveness when dealing with protected disclosures is part of the problem, rather than the solution.
He says: “The most common response of too many employers towards staff who raise concerns which have not been addressed and who then seek to pursue them is to turn a patient safety/care dispute into an employment dispute.”
In short, too often HR sides with the employer for fear there may be a grievance raised against it, or worse, an employment tribunal.
To Mike Emmott, employee relations adviser at CIPD, the inferences made in the report are clear: “My interpretation is that [Francis believes] HR professionals are somehow too concerned with potential reputational damage to be impartial in these cases and they too often back the wrong side – that is, the person being complained about – when allegations of misconduct come to light.
“By suggesting that HR has neither the independence nor the authority to be trusted with the job of protecting whistleblowers from victimisation, the report does a disservice to those in the profession who have a great deal of experience in ensuring that staff who rightly raise concerns are treated properly.”
But David Lewis, professor of employment law at Middlesex University and convenor of the International Whistleblowing Research Network, says that HR practitioners need to forget their pride and get behind the Francis recommendations.
He says: “I don’t see ‘speak up guardians’ as undermining HR in any way, and if anything, I believe they will help support them when they are caught in the middle of a whistleblowing incident being squeezed by both sides.”
Lewis believes that HR will help to set up these independent guardian roles and ensure they function properly, but that “the guardians concerned will be specialist managers who sit outside HR but who have the expertise to deal fairly and justly with concerns raised by staff”.
Seeing as HR typically has a central role in cultural change – something underway in many NHS trusts nationally – the new guardians could become an ally of HR in achieving this, adds Lewis.
The report does a disservice to those in the profession who have a great deal of experience in ensuring that staff who rightly raise concerns are treated properly” – Mike Emmott
He says: “When it comes to changing the culture of something as massive as the health service, we cannot expect HR to shoulder the entire burden: that comes down to government as well as senior managers and requires both political will and financial support.
“HR has a prime role in ensuring that staff understand how to both raise and receive concerns, but it can also take small but decisive steps towards fostering a culture of openness: asking people about their willingness to raise concerns at annual appraisals for example or even running awards celebrating the best example of someone willing to speak up.”
Emmott agrees that it will fall to HR to train line managers on how to deal with whistleblowing and believes that specialist guardians may be a positive innovation, “particularly if an organisation is in denial over malpractice”.
But he questions the implication that they will be drawn from outside the ranks of HR: “These will be very senior roles and will need to go to people who have both the trust of top management and credibility in the organisation at large.
“In the case of the NHS – where the people management brief is very wide – I can see no more proper person to fit this brief than an accomplished HR professional.”
Beyond the rulebook
NHS Employers chief executive Danny Mortimer believes that while there is good practice around whistleblowing in some NHS HR departments, the profession as a whole must accept the need for urgent change.
He says: “What the Francis report is really getting at is that HR departments need to go beyond a reliance on the rulebook when dealing with cases of whistleblowing; they need to have a more sophisticated response than simply going away, looking up the policy and applying it.
“The best people already do this of course, and nobody is suggesting that there aren’t some fantastic examples of good practice out there, but what the report is highlighting are those examples where defensiveness is allowed to cloud judgement and where individual staff have been very badly treated; in some notable cases, by HR itself.”
Mortimer believes that each individual NHS trust will take its own decision on who the best guardians will be locally and says that staff governors, trade union reps and independent clinicians, as well as HR professionals, would all be good candidates for the job. He says:“By putting in place a network of individuals responsible for whistleblowing – people with a direct line of sight to senior management and the board – we give confidence to our staff that they can raise difficult issues and will be heard and treated fairly without being somehow blamed for bringing the organisation into disrepute.”
In the US, whistleblowers have been able to access financial incentives, or so called ‘whistleblowing bounties’, for providing information on corporate wrongdoing, since 2011.
Under the Dodd-Frank Act, any person who reports a credible tip or complaint can qualify for 10% to 30% of the amount recovered by the Securities and Exchange Commission (SEC) once the fraud has been investigated.
In September last year, the SEC paid out more than $30 million to a whistleblower who provided information about an ongoing fraud; the previous high had been $14 million.
The Home Office in the UK has considered introducing a similar incentive system here in light of a number of corporate and public sector scandals, but there were concerns that it might attract whistleblowers more interested in a pay-out than exposing wrongdoing.
He also believes that HR’s reaction should be open, not defensive, when difficult concerns are raised and he calls for staff engagement to be viewed, by default, “as an outcome rather than a process”.
Is legislation the answer?
Lewis is one of many who believe that Francis should have recommended criminal sanctions against those who persecute whistleblowers.
“Criminal sanctions would make it quite clear that the whistleblower is acting in the public interest and although I wouldn’t envisage there being many prosecutions, it would be a signal to HR and to all staff that victimising or being aggressive to them is not a reasonable response,” he says.
Emmott disagrees: “Legislation isn’t the answer, but codes of conduct for individual organisations certainly are. I’d also like to see an overt acknowledgement by senior managers that they want to receive the bad news about their organisation as well as the good.”
He adds: “We want to lift the fear that by speaking out, staff will be victimised and we want to make it clear that if employers mishandle whistleblowers, or attempt to sideline their concerns, there will be a backlash against them in terms of reputational damage. That’s punishment enough.”
Lewis notes that the majority of whistleblowers attempt initially to raise their concerns internally via line managers, rather than heading straight to the tabloids.
“Going to the media is always a last resort for whistleblowers, who invariably want to keep the matter confidential and are showing loyalty in doing so. But if they aren’t treated seriously or if their concerns are buried, they have little option but to make a disclosure to the world at large and face ruined careers and lives,” he says.
To Emmott, the fear that by blowing the whistle, an employee will damage or even end his or her career – as has recently been the case both inside and outside the NHS – will still linger, despite the establishment of guardians.
He concludes: “There is no failsafe method of protecting whistleblowers from colleagues who believe they are being disloyal, but if staff believe that management is committed to addressing any serious concerns, and is on their side, they are more likely to be willing to come forward.
“HR is the conscience of an organisation, and if there have been cases where they have attempted to hush up or victimise legitimate whistleblowers, we can assume that the employer concerned is in a very sorry state indeed.”
Hopefully, there is more readiness today to report rather than cover up or ignore serious incidents such as those at Stoke Mandeville and the Mid-Staffordshire NHS Trust, which prompted the Francis Report in the first place. By seeing beyond the policy, and with support from the proposed “speak up” guardians, HR will no longer be seen to be taking sides.