Response to Protect’s proposed changes to UK whistleblowing law

 

Summary: UK whistleblowing law (the Public Interest Disclosure Act 1998 or PIDA) is very weak and in fact helps to crush whistleblowers. Radical reform is required to genuinely protect the public. The whistleblowing organisation Protect (formerly Public Concern at Work) was instrumental in introducing this flawed legislation. Protect remains upbeat about PIDA’s contribution, but now accepts that the law needs to change. The organisation has put forward a proposal to amend UK whistleblowing law. Whistleblower colleagues, Martin Morton and Clare Sardari and I have reviewed the proposal and provided a response as requested. We are concerned that the proposed amendments do not adequately address the crucial flaws in the UK legislation. In our view if Protect’s proposed changes are adopted, the key gaps in investigation of whistleblowers’ concerns, deterrence of reprisal and to a degree, pre-detriment protection, will remain. Our response is provided below. Our position is informed by the first hand experience of whistleblowers who have been failed by existing legislation.

Martin Morton tweets at @NitramNotrom

Clare Sardari tweets at @SardariClare

 

Protect’s view of PIDA:

Screenshot 2019-12-19 at 09.35.16.png

 

LETTER TO PROTECT:

BY EMAIL

Liz Gardiner

Acting CEO Protect

19 December 2019

Dear Liz,

Response to Protect’s proposed changes to UK whistleblowing law

Your predecessor invited comments on Protect’s proposed changes to UK whistleblowing law and accordingly we write in response.

We welcome in principle all efforts which recognise that current UK whistleblowing law is deficient and in need of reform. We agree that much more needs to be done to ensure that UK whistleblowers’ concerns are properly handled.

We also welcome the recognition in Protect’s proposals that family members can also be casualties of badly handled whistleblowing cases. We agree with the proposal to reverse the burden of proof.

However, as we understand it, Protect is proposing only amendments to what currently exists in UK employment law.

We feel that much more radical change is needed because the current law has totally failed whistleblowers and the public for twenty years and is very unsafe.

Protect in its previous iteration as Public Concern at Work was over-optimistic in its forecast that the Public Interest Disclosure Act 1998 would protect workers by providing a deterrent, because workers would be able to sue employers after suffering serious harm. The reality is that the inequality of arms and the powerless of workers is such that few can afford to contemplate litigation, and even fewer can see litigation through.

Your organisation’s predictions that PIDA would deliver accountability, in the absence of any provision by PIDA for real penalties for wrongdoers, have proved inaccurate.

The State’s failure to hold any individuals accountable for the unlawful killings at Hillsborough, and the lack so far of any prosecution for unlawful killings at Gosport War Memorial Hospitalafter whistleblower suppression, illustrate only too starkly how little accountability exists sometimes in the UK for serious crimes.

We feel that to now leave UK whistleblowing under the umbrella of employment law, as Protect proposes, sends the wrong message. It frames the issues wrongly as a dispute between whistleblowers and employers when rather, it is fundamentally an issue of public protection. That is what the law must address.

What is required is a complete overhaul and reframing of UK whistleblowing law. We feel the State should take much greater responsibility for protecting the public, and that new whistleblowing law is needed. It should be free standing and revolve around the proper resolution of whistleblowers’ concerns, not any secondary employment disputes.

We are also concerned that your proposed amendment still relies too heavily on litigation. Litigation is traumatic for whistleblowers, it comes too late in the whistleblowing journey to do much good for individuals and the reliance on litigation would continue to fuel the private industry of middlemen who currently benefit financially from PIDA’s inefficiency, at the expense of the public purse.

We feel that for sake of whistleblowers’ welfare  and in the public interest, the law should promote a leaner model of resolution with emphasis on both prevention, and earlier, leaner dispute resolution by ACAS and by a central whistleblowing agency.

We address below some specific points arising from your proposal, with the handling of whistleblowers’ concerns being our foremost concern. Without adequate legislation to ensure proper handling of concerns, all else falls.

Overall, we appreciate the effort to secure reform but cannot support Protect’s proposal as it stands. We hope you will consider the concerns that we raise.

When one of us, Martin Morton, contacted Public Concern at Work in 2008 for help as a whistleblower, the bald advice from your organisation was that Martin should resign. This implies that PCaW had very little confidence in the law to protect and resolve what has since been proven to be a very substantial whistleblower case involving serious harm to many highly vulnerable people, and the cover up of this harm.

So it would seem that Protect has known for over a decade that UK whistleblowing law was failing whistleblowers.

That being the case, it would have been good if PCaW had the courage at that point to speak up unequivocally about the fatal flaws in UK whistleblowing law.

Likewise, it would be good if Protect now shows the courage to call for the necessary level of reform as opposed to settling for compromises.

With best wishes,

Dr Minh Alexander

Martin Morton

Clare Sardari

 

Specific points arising from Protect’s proposals for changes to UK whistleblowing law

 

1) Investigation of concerns

Our reading of your proposed bill is that it does not compel the proper handling and investigation of whistleblowers’ concerns.

It only requires that employers have procedures in place to do so:

“(2) Employers procedures shall include: 

  1. a) channels for receiving the disclosures which are designed, set up and operated in a manner that ensures the confidentiality of the identity of the person making the disclosure and prevents access to non-authorised staff members; 
  2. b) the designation of a senior individual who has responsibility for the effectiveness of reporting channels and following up on disclosures 
  3. c) the designation of a person or department competent for following up on the disclosures; 
  4. d) diligent follow up to the disclosures by the designated person or department; 
  5. e) a reasonable timeframe, not exceeding three months following the disclosure, to provide feedback to the person making the disclosure about the follow-up to the report;” 

 

As you will be only too aware, employers who victimise whistleblowers will often have policies and procedures which say that they will not victimise whistleblowers, but to which they do not adhere.

The legal compulsion should focus on the required acts, not the procedures.

You may feel that your provision for a statutory code of practice will suffice:

“(5) The Secretary of State shall consult with interested parties and require ACAS to produce a statutory code of practice on receiving protected disclosures.”

However, we are concerned this is not strong enough provision. It also sends an unfortunate message. The proper handling of whistleblowers’ concerns should be the prime objective of any well drafted legislation, not material for footnotes.

 

2) Protect’s proposed duty of protection:

“(4) All employers shall be under a duty to take reasonable steps to prevent detrimental treatment by the employer, the employer’s officer or agent, or by any third party to someone who has made, or is believed to have made a protected disclosure.”

We are concerned that this is not specific or strong enough.

Perhaps Protect could consider strengthening this part of its bill. For example:

“(4) All employers shall be under a duty to take reasonable steps to prevent detrimental treatment by the employer, the employer’s officer or agent, or by any third party to someone who has made, or is believed to have made a protected disclosure, someone who proposes to make a disclosure, someone who is wrongly perceived or alleged to be a whistleblower or someone (work colleagues) who has assisted or associated with a whistleblower. This should include undertaking proactive risk assessments when any individual is identified as belonging to any of the above at risk groups.”

 

 

3) Deterrence of whistleblower reprisal

We feel that the lack of robust deterrence is a serious gap in Protect’s current proposal.

We are disappointed that Protect has elected not to call for criminal sanctions for whistleblower reprisal. This seems to us to signal ambivalence about the seriousness of what are sometimes clear crimes of Misconduct in Public Office with fatal consequences. After the Gosport whistleblowers were silenced, the unnatural deaths continued.

Equally, we are disappointed that Protect is not pressing the State to take responsibility for civil penalties against individuals who victimise whistleblowers.

Instead, Protect seeks to burden whistleblowers with the task of pursuing their persecutors under tort:

“(1) If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.”

This again seems to us to trivialise what is serious misconduct against the public interest. It is also frankly, an unkindness against whistleblowers who are exhausted and battered, having already suffered serious detriment. Protect, of all organisations, should know what personal toll is exacted on whistleblowers.

The State should step in, protect and lift the burden away from people who have done their duty, and not prolong their ordeal.

Requiring whistleblowers to file tort actions will doubtless generate business for industry middlemen, but it is  not a prudent, just or compassionate way of dealing with harm and culpability.

Similarly of concern, Protect only proposes that a Whistleblowing Commission should impose fines on organisations. We do not see this as a serious deterrent to wrongdoing.

Organisations are used to paying their way out of trouble in whistleblowing cases.  Public bodies abuse the public purse all the time, and powerful private corporations similarly throw money at silencing whistleblowing cases.

What is needed is personal jeopardy for senior individuals.

There should be a central whistleblowing agency with the powers to

– fine individuals as well as organisations

– undertake criminal prosecutions

– refer criminal prosecutions to the CPS.

It has been argued that criminal sanctions would not actually need to be often used. They simply need to be available largely for the deterrent effect, and of course as a powerful statement of values. We strongly agree with this position.

 

4) The proposed Whistleblowing Commission and Penalties for whistleblower reprisal

 

  1. Location

We are concerned that Protect does not make a clear proposal on where the Whistleblowing Commission will sit and to whom it will answer.

Our concern is that the implication is that it will be beholden to the government via BEIS. If so, we believe this is unworkable and that the agency’s independence would be severely compromised by the government’s political self-interest.

  1. Threshold for disclosing to the Commission

We are very concerned that the threshold proposed by Protect for disclosing to the proposed national whistleblowing agency is too high and will advantage employers:

“(ii) that the information disclosed, and any allegation contained in it, are substantially true”

Inexperienced workers need to be able to disclose on lesser grounds in order to receive advice on what to do, without losing protection.

We strongly believe that Protect should withdraw the “substantially true” test, especially as workers may need to contact the national whistleblowing agency for general advice and information before formally whistleblowing.

The test should only be one of “reasonable belief” at most.

  1. Commission’s powers and penalties for whistleblower reprisal

We do not feel the range of powers proposed for the whistleblowing agency are sufficient.

Protect’s proposals do not give the Commission the necessary powers to intervene swiftly and resolve individual cases quickly to prevent irreparable harm to the public and to whistleblowers.

The Commission should have the powers to remedy detriment, both financial and in kind – for example, restoring lost seniority, removing unfair appraisals, ensuring safe redeployment or alternatively, reinstating etc…

It should also have the powers as described above to apply civil and criminal sanctions for whistleblower reprisal.

 

5) Protect’s proposals on Prescribed Persons

We are concerned that Protect’s proposals regarding Prescribed Persons do not go the heart of what is wrong with the Prescribed Person system, and do not add much value.

The proposals do not standardise what powers Prescribed Persons should have with respect to whistleblowing disclosures and importantly, they do not ensure that all Prescribe Persons have a duty and a power to investigate individual whistleblowers’ concerns. As we understand it, Protect’s proposals only require Prescribed Persons to set out their stalls:

“New Clause: Duties on prescribed persons to set standards on protected disclosures 

(1) The Secretary of State shall make regulations requiring all persons prescribed for the purposes of Section 43F to: 

a) establish independent and autonomous reporting channels, which are both secure and ensure confidentiality, for receiving and handling information provided by the person making a protected disclosure; 

b) keep records of all protected disclosures made to them; 

c) give feedback to the person making a protected disclosure about the follow-up of the disclosure within a reasonable timeframe not exceeding three months or six months in duly justified cases;  

d) follow up on disclosures by taking the necessary measures and investigate, as appropriate, the subject-matter of the concerns. Where the prescribed person is not competent to investigate, they shall inform the person making the protected disclosure of their intention to pass the concern to the appropriate body. 

e) where the prescribed person receives a disclosure from another body under (d) above, they shall take the necessary measures and investigate, as appropriate, the subject matter of the concerns. 

 

(2) The regulations must require a person prescribed for the purposes of Section 43F to publish on their websites in a separate, easily identifiable and accessible section at least the following information: 

 

a) the conditions under which persons making a protected disclosure qualify for protection under this Act; 

b) the communication channels for receiving and following-up disclosures; 

c) the confidentiality regime applicable to disclosures; 

 d) the nature of the follow-up to be given to reported concerns; 

 e) the remedies and procedures available against retaliation and possibilities to receive confidential advice for persons contemplating making a disclosure; 

 f) a statement clearly explaining that persons making information available to the competent authority in accordance with this Part are not considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and are not to be involved in liability of any kind related to such disclosure.”

 

The Prescribed Person system currently gives excessive false assurance because most whistleblowers reporting for the first time are given the impression that their disclosures will be investigated, when in many cases they will not.

It is the lack of investigation which needs to change, and Protect’s proposals do not address this.

 

6) Mobbing 

We suggest that Protect adopts and addresses the concept of mobbing, which is recognised under European law. The term “workplace mobbing” was coined by Leymann *, an occupational psychologist who investigated the psychology of workers who had suffered severe trauma. He observed that some of the most severe reactions were among workers who had been the target of “an impassioned collective campaign by coworkers to exclude, punish, or humiliate” them.

It is essentially a phenomenon of organisational conspiracy, harassment and an abuse of power. It features in many whistleblowing cases, as a mechanism by which a whistleblower’s exit is achieved.

Legislating against these specific acts and placing the emphasis on corporate responsibility would help to strengthen the legal protection for whistleblowers.

* Leymann, H Mobbing and and psychological  terror at work 1990

 

7) Types of protected disclosures

Protect’s proposal to extend protected disclosures to: “behaviour that harms or is likely to harm the reputation or financial wellbeing of the employer” 

This seems an incongruous suggestion and we do not understand what bearing this has on the public interest.

Protect may unwittingly be suggesting that people who “whistleblow” on whistleblowers who pose a threat to an organisation’s reputation should be protected.

 

8) Gags

 

Protect’s proposal on gags only introduces what currently exists in the NHS:

“Clause 4 – Contractual duties of confidentiality (Prohibition of “Gagging” clauses) In Section 43J omit subsection (1) and insert 

(1) No agreement made before, during or after employment between an individual and an employer may preclude that individual from making a protected disclosure.

 (2) Any settlement agreement must contain 

(a) a clear statement that nothing in the agreement affects the rights of an individual to make a protected disclosure and stipulate the types of disclosures that can be made and to which categories of authorities; and 

 (b) certification by the independent adviser that the effect of any requirements of confidentiality and the limitations on those requirements have been explained to the employee.”

 

The arrangement in the NHS  is entirely ineffectual. Staff are still effectively silenced  by the continuing use of confidentiality and non-disparagement clauses regardless of the addition of a clause which tells them they can whistleblow. This is because of uncertainty about what is be defined as whistleblowing.

Indeed when one of us, Clare Sardari, contacted PCaW for help in 2013, she was told that her now vindicated whistleblowing case was just an “HR matter”.

Moreover, current and ongoing FOI work shows that organisations simply flout the NHS rules by in some cases not inserting the required clause about whistleblowing. After all, when a worker is super-gagged, who would be able to tell?

We suggest that the law reform on gags needs to go further.

Super-gags which hide even the existence of settlement agreements should be banned entirely. They serve absolutely no purpose other than improper and oppressive secrecy.

Clauses which infringe basic rights such as prohibiting workers from making personal data requests or freedom of information requests should be outlawed.

A standardised, plain English clause explaining what cannot be gagged should be adopted.

This because currently, many are written in legalistic language that would mean nothing to the average worker.

We suggest there should be specific penalties associated with use of illegal gags which do not conform with whistleblowing standards.

END

UPDATE 30 DECEMBER 2019

Protect have today rushed to congratulate the government in the form of the NHS National Guardian, who has dubiously been awarded an OBE.

Screenshot 2019-12-30 at 12.15.21

This defies the ample evidence of the ineffectiveness and unwillingness of the National Guardian’s Office to truly help whistleblowers.

The Disinterested National Guardian & Robert Francis’ Unworkable Freedom To Speak Up Project

National Guardian looks set to throw Freedom To Speak Up Guardians under the government’s bus too

Draw your own conclusions.

 

RELATED ITEMS

Replacing the Public Interest Disclosure Act (PIDA)

Whistleblowers in Their Own Words: What’s wrong with UK whistleblowing law and how it needs to change

What could a new whistleblowing law look like? A discussion document

This is a specific account of how whistleblowing was too weak to protect a social care whistleblower, Helen Rochester:

UK Whistleblowing Law is an Ass: Helen Rochester v Ingham House Ltd and the Complicit CQC

These are collated witness statements to the police about unnatural deaths at Gosport:

Witness statements about concerns at Gosport War Memorial Hospital

Whistleblowers’ concerns were suppressed, allowing further deaths to occur. The Gosport Independent Panel inquiry concluded that at least 456 patients had their lives “shortened”.

The public inquiry into the MidStaffs hospital deaths disaster recommended that whistleblower reprisal should be treated as a crime. The lawyer who chaired the inquiry, Robert Francis, later reneged on this position when he conducted the Freedom To Speak Up review into NHS whistleblowing:

Sir Robert’s Flip Flops

flip-flops-rf

In an unguarded moment, Robert Francis later stated that whistleblowing law needed “looking at”. Upon realising that there was an NHS whistleblower in the audience who was interested in this, he amended his comment to an assertion that the way in which the law was applied should be reviewed:

Sir Robert Francis and Reform of Whistleblowing Law

 

 

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