By Dr Minh Alexander and Clare Sardari @SardariClare , 19 March 2018
Today, the government announced legislation that was three years behind schedule, to outlaw blacklisting of NHS whistleblowers, as if it was a triumph.
The government is happy to allow whistleblowers this tiny crumb because it poses very little threat to power. It will hardly concern employers. Few cases will succeed, and large institutions are happy to pay compensation to rid themselves of whistleblowers.
What is needed is fundamental reform of UK whistleblowing law to deter reprisals much more effectively, and to prevent whistleblowers from being persecuted and sacked in the first place.
We also reported that she agreed in principle to support an event led by whistleblowers, but that this proved to have strings attached. When we submitted a proposal to lead an event on reform of ineffective UK whistleblowing law with expert speakers, her comms manager intervened. His correspondence suggested that law reform was a banned topic, and intimated that we would be on our own if we would be so naughty as to pursue our interest in law reform.
Since then, we have offered the National Guardian repeated opportunities to set matters straight, and to distance herself from such a position.
The central question put to her was:
“May we clarify if this is saying that your office will support us in running an event, but not if we seek to focus on law reform, as we have suggested?”
We have made our boundaries clear:
“We would rather not lead an event if law reform is a banned topic.”
We have not received a straight answer.
Instead, the National Guardian’s spin doctor has twice intervened again.
He has continued to claim, incorrectly in our view, that the National Guardian has no remit for pursuing law reform.
The National Guardian will not say in black and white if she shares his view.
Arising from these exchanges, we conclude that the National Guardian is not prepared to support an event on law reform, and in doing so she will not allow expert evidence in support of law reform a fair hearing.
Her failure to listen to all the requests for law reform from whistleblowers on her own advisory group illustrates everything that is insincere about the government’s Freedom To Speak Up project.
This is the full correspondence to date with the National Guardian and her office:
The government’s and its organs’ continuing blockade of genuine, effective whistleblowing law reform means that cover ups will continue unhindered, and that patients and whistleblowers will continue to be harmed.
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Thank you for your clarification, Dr. A..
I thought as much but we must never extinguish all hope.
Yet again, P.R. rules and takes precedent over truth, justice, morality – basic competence.
As my late mother would say – posh coat but no knickers.
Kindest, Zara.
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https://www.change.org/p/protect-the-protectors-with-edna-s-law-need-one-law-for-all-whistleblowers
Sign the above for real law reform not the latest dross trotted out by the government.
I must be missing something here but I thought we already had a law that supposedly prevents blacklisting of WB’s and any other detrimental treatment an employer might want to dish out to cover up what is going on in their organisation and discredit the person raising concerns.
It’s called PIDA (the public interest disgrace act). It’s totally useless and not fit for purpose.
All the government appears to have done here is issue a bland set of recommendations (which nobody is obliged to act on anyway) to make themselves look good. Apparently employers should be doing better and employment tribunals need their powers spelt out to them.
IMHO and experience tribunals are fully aware of the limited powers they have at their disposal. They will just find any excuse not to use them especially when the employer is legally represented and a claimant is not. Judges are always mindful of appeals which generally come from a legally represented respondent.
I have an active case in the EAT at present so cannot comment further although I would like to. Suffice it to say PIDA should be scrapped and replaced by a true deterrent for employers. Edna’s law would do this.
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Hi Helen, it’s not clear to me that PIDA allows specifically action on grounds of discrimination in the form of blacklisting, but I’d be interested to know of any past claims that have been made on that basis.
This are the new regulations on NHS blacklisting, in all their underwhelming glory:
https://www.gov.uk/government/consultations/protecting-whistleblowers-seeking-jobs-in-the-nhs
It says something in itself that these regulations only apply to the NHS. Robert Francis could easily have recommended a wider scope, but regrettably did not.
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Hi Minh – I don’t know of any PIDA cases brought specifically on blacklisting – NHS or otherwise. However given PIDA is supposed to protect a WB from ANY detrimental treatment from employers you would sort of hope that tribunals would view blacklisting as detrimental without it needing to be spelt out to them!
I completely agree with you this is not going to bother NHS employers one Iota. The burden of proof would be on the claimant to prove at tribunal they were not shortlisted/successful at interview because of their whistleblowing.
Unless the legally advised employers are dumb enough to put that as a reason in a letter there is very little prospect of anything being proved here. The letters will just say something like due to the high standard of applicants you were not successful on this occasion. It would be almost impossible for a claimant to prove otherwise.
I’m guessing the NHS will not be loosing to much sleep on the new legislation which will be just as ineffective as PIDA itself.
You are so right. This is just spin from people in a position of power to make real reform happen but don’t.
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Thanks again Helen.
I agree that blacklisting is detriment, and whether or not PIDA currently covers this, as a matter of common sense it should.
For what it’s worth, Robert Francis’ conclusion (albeit not as specialist employment lawyer, but one who spoke to specialist lawyers in the course of the Freedom To Speak Up Review) was that PIDA does not cover blacklisting:
“the law does not provide any protection or remedy for people seeking to find new
employment.”
Click to access F2SU_web.pdf
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