By Dr Minh Alexander and Clare Sardari NHS whistleblowers 18 October 2018 (updated 22 October 2018)
As preparation for a whistleblower-led event on 19 October 2018 about reforming wholly ineffective UK whistleblowing law, we asked fellow whistleblowers who have litigated under the Public Interest Disclosure Act 1998 (PIDA) to contribute brief testimony on their experiences.
We also asked fellow whistleblowers to contribute ideas for improving the law.
A concise summary report of thirty one whistleblowers’ views, and also information from other whistleblowers who did not litigate and supporters who contacted us, is set out below.
The link to the full report with each whistleblower’s testimony can be found: here.
This evidence will be shared with parliament and other decision makers to inform the growing debate on the need to replace PIDA.
The campaign continues and whistleblowers would be very grateful for any support the public can lend. Protecting whistleblowers protects us all. If you are able, it helps greatly if people can write to their MPs in support of our campaign.
If it is helpful, a handy template letter for writing to MPs can be found: here.
Thank you to all and thank you especially to all whistleblowers who poured very personal and hard won experience into this project. We hope it will all count, no matter how long it takes.
Minh and Clare
WHISTLEBLOWERS IN THEIR OWN WORDS: WHAT’S WRONG WITH UK WHISTLEBLOWING LAW & HOW IT NEEDS TO CHANGE
“PIDA provided protection not for me but for my then employer.” (whistleblower 9)
UK whistleblowing law, the Public Interest Disclosure Act 1998 (PIDA) was an innovation when it was first introduced, but it has fallen far behind international best practice. PIDA is wholly ineffective and needs to be replaced.
A comparative study by Blueprint for Free Speech in 2016 which set PIDA against international best practice standards of whistleblowing legislation found the Act sorely lacking.
This paper tells the story of PIDA’s failings in UK whistleblowers’ own voices, and is part of an initiative on law reform led by whistleblowers who were members of the National Guardian’s advisory working party for a fixed term 2017-2018. The initiative has been conducted independently of the National Guardian’s Office. It seeks to present evidence from various sources on the vital need for new, radically improved UK whistleblowing law.
Thirty one whistleblowers who have litigated under PIDA gave first-hand accounts of the problems with the law. Their individual accounts and ideas for change are listed individually below.
Whistleblowers were invited through an open process to submit brief testimony. The process did not include examination of individual cases and facts, but most individuals were known to the authors or to other whistleblowers.
The whistleblowers came from a range of sectors, public and private, including policing, education, industry, local government, health and social care.
Their accounts collectively reveal failures under PIDA to investigate whistleblowers’ concerns, protect them or hold wrongdoers to account. Whistleblowers’ feedback and suggestions amount to a call for replacement of the existing framework. A range of suggestions are made for levelling the playing field, which currently is hopelessly slanted against whistleblowers.
PIDA’s failure to ensure that whistleblowers’ concerns are addressed
A prime concern was PIDA’s disinterest in whistleblowers’ disclosures:
‘…the most astonishing thing to me was that no one is obliged to investigate the concerns raised’. (whistleblower 15)
Deaths, abuse, theft and gross governance failures are of no interest to a law that focuses only on the employment relationship:
“The ET had no interest in my employer’s failures regarding POVA or in not following policies.” (whistleblower 6).
“The home’s mortality rate quadrupled. Only a fraction of my complaints were investigated by the local Care Trust” (whistleblower 12)
“Theft, abuse, poor care is not an employment issue.” (whistleblower 2)
“…the ET judge is only interested in employment issues and can disregard protected disclosures” (whistleblower 20)
Lack of protection and detriment due to the litigation process itself
The lack of protection from the law was another key feature. Detriment occurs easily and is not corrected under PIDA.
It is arguable that PIDA protects employers, not whistleblowers:
“PIDA provided protection not for me but for my then employer” (whistleblower 9)
The litigation process itself is a source of detriment:
“Litigation is exhausting, soul destroying, wasteful and bad for all involved. It is often a serious trauma in itself.” (whistleblower 1)
“I won at tribunal but it didn’t feel like a win I felt battered and left with little confidence about myself.” (whistleblower 2)
PIDA’s prejudicial complexity, which disadvantages ordinary people seeking justice, was noted:
“The burden of proof is on the claimant to prove that each disclosure meets a number of legal tests and is therefore “qualifying”. This assumes that claimants have an understanding of the law (PIDA) at the time at which those concerns were raised. Most claimants have no knowledge of this highly complex area of law” (whistleblower 9)
The highly distressing, often futile nature of legal proceedings under PIDA is described in these first-hand accounts. Character assassination and various other tactics by employers to intimidate and punish are recurring issues.
For example, dragging out proceedings, intimidating witnesses, gagging under duress, threatened and actual vexatious cost orders, aggressive appeals to deplete whistleblowers’ resources, concealment of evidence, conspiracy and misleading the Court. Whistleblowers expressed concern that frank lies under oath and defamation are tolerated in proceedings.
As an example of fabricated allegations being used as a bargaining tool to remove whistleblowers from organisations, whistleblower 16 gave this report:
“There was a “settlement” on the second day of the Tribunal proceedings…. Incredulously, based on my fight, every single complaint against me (albeit all false) were withdrawn and quashed; which proves they were all false and fabricated”
Grotesque inequality of arms was reported in some cases, such as the matching of an employer’s QC against a care home worker (whistleblower 2). The fact that some whistleblowers might be disadvantaged by illness by the time cases are heard was flagged: ‘…a claimant at tribunal who might be ill or stressed’ (whistleblower 24).
Whistleblowers thought the extreme stress of litigation should be avoided: “Litigation should be a last resort” (whistleblower 5). The sense of personal burden upon whistleblowers under PIDA was described. For example:
“The employer was an accountant who covered up. I reported him to the ICAEW and he got a fine. I got a solicitors’ bill.” (whistleblower 2)
Highlighting how vulnerable whistleblowers can be, and how dependent they currently are on a complex chain of events, one whistleblower’s claim failed because their adviser failed to tick the box on the Employment Tribunal claim form for whistleblowing. (whistleblower 21).
There were indications that Employment Tribunals were not expert enough on whistleblowing. For example, whistleblower 5 was penalised for not accepting a trial return to work related to a loss of trust, when trust is critical to a whistleblower’s safety and well-being:
“My remedy hearing failed to account for loss of future earnings because under employment law I had not accepted a trial return to work with my previous employer because of a breakdown in trust.”
There was incredulity from some whistleblowers that despite being accepted as a whistleblower, the Court found reasons to deny any link with detriment:
“At my ET the judge forced my employer to admit that 15 of my 22 allegations were protected disclosures. But said he was not interested in the facts of these allegations, only in whether my employer had a valid reason to dismiss me. The reason accepted for my dismissal ‘A breakdown in the relationship.’ No consideration as to who was at fault for the breakdown!” (whistleblower 20)
Failed duty of care and collusion between bodies
A concern was expressed that as long as the law was allowed to be perverted, law reform may be in vain:
“As long as the courts allow them to maintain this state no legal refinement will be effective, but rather, will perpetuate even more complicated legal processes ruled by unaccountable institutions with access to unlimited public funds.” (whistleblower 21).
Many of the whistleblowers reported concerted inaction or collusion between bodies, and regulatory complicity in cover ups and reprisal:
“I went to the local clinical commissioning group, NHS Monitor, the CQC and the Parliamentary Health Service Ombudsman. I then went to the police, the CPS and the Crown Court on every occasion I was ignored. Wherever I turn I found that there was no organisation that would listened to me or able to offer any constructive advice or support.” (whistleblower 4)
“My professional regulator failed to protect me or to hold to account those who made false allegations” (whistleblower 12)
“My concerns were not addressed. I believe there was collusion between managers and between bodies, including ministers and regulators, who breached my anonymity and closed ranks.” (whistleblower 15, who discovered collusion and breach of their anonymity through a request under the Data Protection Act)
…Nor do I have any confidence in regulators. They also all let me down.” (whistleblower 10)
Some whistleblowers reported seemingly very odd decisions by the Employment Tribunal itself. A police whistleblower who raised concerns about false arrests reported:
“I lost my claim as the employer would not accept my concerns were raised as a whistleblower which the ET panel went along with.” (whistleblower 17)
Another whistleblower was devastated by this completely unexpected ruling:
“The Tribunal made a shock, illegal finding against me. It erred in law and held that I whistleblew in bad faith. This allowed my employer to pursue me for £100,000 costs which would have ruined me. I thought about suicide.” (whistleblower 22)
Some whistleblowers reported being let down or even coerced by their unions:
“My complaint was investigated under bullying and harassment, my unison rep threatened me into accepting this.” (whistleblower 25)
“The union advised drawing a line under the complaint & were not supportive.” (whistleblower 6)
There were mixed perceptions about the organisation Protect (formerly Public Concern at Work) which many employers advise workers to contact for advice on whistleblowing. Some whistleblowers did not feel supported:
“I contacted Public Concern at Work (PCAW) but they were frankly hopeless and did nothing to help me” (whistleblower 4)
“I was advised by ACAS and PCAW. They said to let it go, settle for a paltry sum. It was not about money but abuse.” (whistleblower 2)
Some whistleblowers reported that the National Guardian’s Office and or their local trust Guardian had ignored and let them down:
“I have no confidence in the Freedom To Speak Up project. It failed me completely. Indeed, the non-exec’ director with responsibility for whistleblowing has still to contact me after my dismissal.” (whistleblower 10)
“I was sacked following a sham disciplinary, not supported by my Union not supported by Trust Guardian nor by the National Guardian despite there being adequate time to prevent my sacking or at least to have reviewed the spurious evidence the Trust was using to sack me” (whistleblower 3)
Poor outcome and remedy
Whistleblowers highlighted the wastefulness of litigation under PIDA, PIDA’s inefficiency in terms of the high cost of litigation relative to compensation and a sense of being exploited:
“I conservatively estimate that my case cost the NHS over £250K and I know of other cases that have cost considerably more.” (whistleblower 4)
“The standard compensation that I received for ordinary dismissal does not reflect my real loss at all, and it was consumed by legal costs. The litigation was also a waste of public money.” (whistleblower 15)
“I ‘won’ my case at ET but my concerns were buried and my compensation was swallowed up by legal fees. I was led a merry dance by lawyers who did not have my best interests at heart or care about the public interest.” (whistleblower 11)
The insufficient calculation under PIDA of loss, and PIDA’s failure to recognise human rights such as the right to family life, was flagged:
“Due to the witchhunt, I have to work abroad. I see my family only once a fortnight, overnight…. ET’s should be able to award compensation for intangible losses (like, in my case, loss of contact with my family, friends, relatives and family home for the next 8-9 years).” (whistleblower 10)
Blacklisting was reported, and in relation to this, the pyrrhic nature of ‘winning’ a case under PIDA was noted:
“After taking legal action I was given compensation which mainly covered my legal fee and apology letter from DH. But I stayed black listed and never allowed to work in NHS again.” (whistleblower 12)
Long term unemployment was reported:
“My employer tried their best to destroy me. In the long-term, they have. I lost everything, including my home and have not worked since. The school I worked at, having denied everything I reported, eventually changed most of the systems I reported and eventually got rid of the Head.” (whistleblower 20)
Lack of accountability for wrongdoing and reprisal
A serious recurring criticism by whistleblowers was that PIDA has not ensured accountability:
“The wrong doers who were involved in my case were promoted.” (whistleblower 12)
“Those responsible for the detriment I experienced were not personally held to account and were later feted by CQC.” (whistleblower 5)
“Over the years, I watched those who lied and who victimised me promoted.” (whistleblower 11)
“….most of the offenders remaining free to carry on to work with vulnerable patients” (whistleblower 19)
Miscellaneous issues from non-litigated cases
The core respondents to the exercise were whistleblowers who had litigated.
Several whistleblowers who had not litigated contacted us to share concerns about problems of access to the legal process. These primarily related to problems with union support and unfavourable merits assessment by union lawyers.
An example of such an account is given in Annex 1.
Gagged whistleblowers are another significant group.
Whistleblowers know that gagging continues on a widespread basis and is tool of fear that prevents full transparency.
Settlements which prevent signatory from even revealing the existence of a settlement are particularly intimidating and arguably exist only to subvert the public interest.
Additionally, it is known that several local authorities and NHS employers have seriously overstepped by coercing whistleblowers into accepting gags which questionably sign away rights to make Freedom of Information requests and requests for personal data.
A former NHS medical director who has supported whistleblowers who had been silenced shared a report describing systematic collusion by bodies to silence whistleblowers and protect institutional reputations. The medical director reported huge costs to the public in terms of the destruction of clinical units which took decades to build and were hubs of clinical excellence, research and data, as part of the collateral damage of suppression. These type of costs due to poor whistleblowing governance are very serious, but often overlooked.
Lastly, highlighting important gaps in the list of protected groups, a former NHS non executive director has given an account of the resistance and reprisal that they encountered when raising concerns.
“Non-Executive Directors are among several groups not covered by the Public Interest Disclosure Act. Despite recommendations to the contrary, the Government has refused to extend the limited protection PIDA offers to employees to such groups. I became aware of this after raising questions in my role as a Primary Care Trust Non-Executive Director, described by the Chair of the Strategic Health Authority as causing “disruption”. I wrote to the SHA Chair, explaining my concerns about “risk management, governance and public confidence”, adding that if he genuinely believed I caused disruption he could “use the procedure available to you to have me removed as a Non-Executive Director from the NHS”. He initiated an inquiry which he told me found my concerns to be “completely unfounded”. I submitted a complaint to the SHA about the inadequate investigation, which was dismissed.”
This is a critical matter because part of the NED role is to provide balance and challenge. In many organisations, a NED is the designated Board lead for whistleblowing. If the person to whom all whistleblowers in the organisation are supposed to turn for help is not protected, this makes a sham of the whole system.
What changes to the law are needed?
The following is a broad overview which captures the broad gist of the suggestions from whistleblowers who contributed.
Whistleblowers ask for a statutory requirement for their concerns to be investigated, and for a statutory duty upon bodies to protect them and their anonymity, from the point at which they whistleblow.
Whistleblowers ask for an element of independence in investigations about their concerns, and for an independent body to enforce statutory protections.
Whistleblowers also ask that the law ensures greater accountability for and deterrence of wrongdoing and reprisal, by providing penalties against individuals.
There is an overall view that employment law is far too narrow to deal with the complexity of whistleblowing, and that fundamental reform of the framework is needed, to allow appropriate handling of concerns, provide criminal sanctions and other mechanisms.
Whistleblowers stress the importance of dealing with wrongdoing, for example:
“Therefore, the legislation should:
- Focus on wrongdoing, and
- Not on the employment relationship”
There is a suggestion to add whistleblowing to the Equality Act:
“Whistleblowing should be a protected characteristic under the Equality Act. (Whistleblower 10)”
Some whistleblowers suggest that the way the law views whistleblowers should fundamentally shift, for example from plaintiff to ‘victim of crime’ (whistleblower 29).
It follows that the State should take therefore greater responsibility for protecting such a witness:
“We need new law that recognises whistleblowing is centrally about public safety and fundamental rights, not some trivial, unedifying employment spat. The law needs to powerfully protect the public interest by creating conditions in which it is easier to speak up, and much harder to persecute those who do. Whistleblowers shouldn’t be bullied by the government by being left to defend themselves against overwhelming force of arms from employers, but actively shielded and lifted out of detriment. Litigation should be avoided where possible” (whistleblower 1)
There are suggestions for earlier intervention:
“The law should be strong enough to prevent serious detriment in most cases” (whistleblower 1)
There are suggestions for revising the causation test which links detriment to whistleblowing, to reduce what is currently too high a hurdle. For example, the law should be changed so that failures to investigate and process a whistleblower’s concerns properly are taken “taken into account by the ET Panel.” (whistleblower 16)
“An ET must look at the concerns raised and how they were handled as well as any detriment suffered by claimant.” (whistleblower 6)
“An employer’s failure to follow it’s own policies concerning whistleblowing, disciplinary investigations etc. & safeguarding the public interest should also be taken into account at ET in all claims.” (whistleblower 6)
Another proposal for tipping the scales more fairly towards whistleblowers is to make other detrimental acts against whistleblowers, besides dismissal, automatically unfair. For example, exclusion. (whistleblower 21)
There are suggestions that concealment and causing serious detriment to a whistleblower should be classified as a crime, for example, under Misconduct In Public Office.
“Would-be abusers should know that they risk heavy fines, disbarment and jail time if they indulge in serious misconduct and cover ups.” (whistleblower 1)
“Substantial fines for poorly investigated cases. Substantial fines for keeping whistleblowers from work” (whistleblower 25)
Specifically, it is suggested that not only should employers be held to account, but that other parties who harm or fail whistleblowers should be liable. For example:
“…criminal liability for serious whistle-blower retaliation and for obstructing/perverting the proper functioning of the legal process, and it should hold regulators, other officials and government departments to account for failing whistleblowers.” (whistleblower 10)
There are suggestions for improving remedies to ensure that all loss is fairly accounted for, including intangible loss such as disruption to family life.
Mechanisms for addressing legal inequality of arms are suggested, for example:
“Legal fees should be waived for all whistleblowing cases.” (whistleblower 25)
“The law should make legal aid provision for the whistle blower, but also insist that the organisation involved is limited to one legal team” (whistleblower 28)
Special training for lawyers, judges and union representatives who deal with whistleblowing cases is suggested.
The information from non-litigated cases raises the following issues for any law reform project:
- Access to trade union support
- Addressing gaps in protected groups, such as non executive directors
The use of gags in settlements, especially clauses which hide even the existence of settlements or which flagrantly breach rights by prohibiting access to data under FOIA and DPA, also needs to be addressed by any new whistleblowing law.
Difficulties that I have experienced in using the Public Interest Disclosure Act:
I’ve whistleblown on serious matters several times in my career, before and after PIDA came into force. I’ve been vindicated in my concerns. There’s never been reliable protection nor full investigation of all concerns. It’s just happenstance, depending what individuals were in the mix. I’ve known both honest and crooked bosses. Diligent and collusive regulators. Ministers who took some action and others who deflected everything. PIDA is a bed of nails for whistleblowers, especially first time flyers with high hopes. The language of PIDA is dishonest: the word ‘protect’ crops up everywhere. Governments repeat it ad nauseam. Yet PIDA is only a poor remedy after the event, if you’re very lucky. It’s easy for employers to attack you under PIDA. Its worst feature is that it ignores your concerns. Litigation is exhausting, soul destroying, wasteful and bad for all involved. It is often a serious trauma in itself.
How I think the law should change:
We need new law that recognises whistleblowing is centrally about public safety and fundamental rights, not some trivial, unedifying employment spat. The law needs to powerfully protect the public interest by creating conditions in which it is easier to speak up, and much harder to persecute those who do. Whistleblowers shouldn’t be bullied by the government by being left to defend themselves against overwhelming force of arms from employers, but actively shielded and lifted out of detriment. Litigation should be avoided where possible. The law should be strong enough to prevent serious detriment in most cases, and it should restore all loss. It should be compulsory to investigate whistleblowers’ concerns and there should be a fully independent agency to ensure compliance and protection. Would-be abusers should know that they risk heavy fines, disbarment and jail time if they indulge in serious misconduct and cover ups.