By Dr Minh Alexander and Clare Sardari @SardariClare NHS whistleblowers, 26 April 2018
Whistleblowers are united in calling for reform of UK whistleblowing law which was introduced twenty years ago but is ineffective in protecting the public interest and those who speak up.
The NHS National Freedom To Speak Up Guardian has not agreed to support calls for law reform, and her Office initially declined to support an event on law reform.
After several exchanges of correspondence , the National Guardian has agreed to sponsor such an event. It will be discussed at the next meeting of the National Guardian’s advisory group on 4 May.
Negotiations continue but this is an outline of the event, which is scheduled for 19 October 2018:
A WHISTLEBLOWER-LED EVENT ON UK LAW REFORM
There is consensus amongst whistleblowers that UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA), is weak and needs urgent reform.
Sir Robert Francis acknowledged in his report of the Freedom To Speak Up Review that PIDA is weak.
The salient concerns about PIDA are summarised below in the annex.
The National Guardian has to date not agreed to support calls for law reform, but has agreed to support an event led by whistleblowers on this issue.
Outline of event
Negotiations continue and the final details of the event are yet to be finalised, but an outline follows.
The event will seek to present expert evidence to key decision makers such as Ministers and the Law Commission about the need for whistleblowing law reform.
The format will include preparatory information gathering to inform the event and for publication in a report arising from the event:
- Survey of participants and survey of NHS trust chief executives prior to the event
- Collation of succinct whistleblowers’ personal accounts of their experience of PIDA and their views on how the law should change.
The event will be a small scale symposium to present expert legal evidence to key decision makers, and to allow for in depth discussion and start a conversation on what is needed.
Three key areas will feature:
- The need for pre-detriment protection
- The need to compel investigation of whistleblowers’ concerns
- The need for meaningful penalties for reprisal
Whistleblowers will facilitate the event and expressions of interest will be sought.
A full report will be produced from the event to document the evidence gathered and the arguments in support of reform.
Dr Minh Alexander and Clare Sardari, NHS whistleblowers, 25 April 2018
ANNEX: KEY CONCERNS ABOUT PIDA:
- PIDA does not compel anyone to investigate whistleblowers’ concerns
- PIDA does not confer protection. It only allows whistleblowers to sue for compensation after serious harm. There is no evidence that the prospect of being sued for compensation deters reprisal by employers. As long as employers have the means to pay compensation, they can easily rid themselves of whistleblowers by unfairly dismissing them.
- PIDA does not confer personal jeopardy for those who cover up and victimise whistleblowers. There is no formalised penalty for betrayal of the public interest.
- Under PIDA, whistleblowers personally carry the burden of risky litigation, even though the matters in question concern the public interest. The cost of litigation can be ruinous. Even on the rare occasions when whistleblowers ‘win’, the legal fees can swallow up much of what is already inadequate compensation for loss of livelihood and a future of long term unemployment.
ETs seem also to be increasingly awarding costs against whistleblower claimants. Equally, ETs may also dock compensation on the basis of alleged contributory fault by whistleblowers, that may in fact stem from inexperienced litigants in person being outgunned in court and thus making tactical mistakes, or the result of deliberate employer provocation to muddy the waters.
- It is very hard to win PIDA cases. This is due to the nature of the legal tests that must be satisfied and the inequality of arms between employers and whistleblowers. Many cases are simply settled (usually to the whistleblower’s disadvantage) or they are withdrawn. Only approximately 3% of all whistleblowing PIDA claims eventually succeed at hearing.
- PIDA is narrowly constructed to focus on employment issues, and PIDA cases are handled by Employment Tribunals, despite the fact that Employment Tribunals are not equipped to deal with whistleblowers’ concerns and struggle with the complexity of some of these cases. This perpetuates a focus on personal conflict and deflects attention away from the public interest and policy issues that provoke whistleblowing in the first place. It helps to continue the narrative by successive governments that whistleblowers are troublemakers, and neatly avoids the need to address the underlying risks to the public.
- PIDA does not compel employers to improve their governance following whistleblowing failures. 8. PIDA focuses on whistleblowing governance failure by employers but not by regulators and government departments, when the latter are in fact much more serious and important. For example, the ET clarified that it had no jurisdiction for hearing Helen Rochester’s complaint about detrimental actions by the CQC towards her as a whistleblower.
This a comprehensive report by Blueprint for Free Speech which categorises in detail PIDA’s substantial flaws and shows how badly PIDA compares to legislation from other jurisdictions:
This is a very recent case example, of Helen Rochester’s care home whistleblowing case, which clearly illustrates the weaknesses of PIDA and the ET system:
Helen Rochester proved the facts of her claim but still lost because the ET chose to give her former employer extraordinary latitude and the benefit of the doubt as to whether the detriment that it inflicted was motivated by her whistleblowing.
Her case is particularly cogent because she was twice betrayed by a regulator (the Care Quality Commission) which has since refused to transparently review its processes, further highlighting the folly of tolerating weak UK whistleblowing law in a system which is subverted by politicisation and various degrees and types of corruption.
Given such repeated and very substantial failures of PIDA over twenty years, it is not sustainable to maintain a position that law reform is merely secondary, and that a programme of nudging and soft culture change is more important.
Daily serious breaches of the Nolan standards – introduced over twenty years ago – in our public services amply demonstrate that soft codes of conduct and exhortation are no substitute for legislation, such as for example USA legislation, which governs conflicts of interest and prohibited personnel practices by federal employers.
Good law, which is accompanied by an appropriate enforcement infrastructure, will enforce better practice and drive culture change much more effectively and quickly.
It is time for the government to act upon this and to finally and properly protect whistleblowers.
This information for whistleblowers, about the forthcoming call for evidence: