In the news this week, concerns have been raised about the protection of whistleblowers particularly within the NHS.
It has been reported that thousands of NHS staff have been bullied and intimidated by senior colleagues after raising concerns about patient care.
The question perhaps now for many people is why bother raising a concern?
Let’s look first of all at what a whistleblower actually is:
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There must be a qualifying disclosure of information – the information disclosed must, in the reasonable belief of the worker, tend to show that one of the following has occurred, is occurring, or is likely to occur:
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A criminal offence
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Breach of any legal obligation
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Miscarriage of justice
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Danger to the health and safety of any individual
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Damage to the environment
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Deliberate concealing of information about any of the above.
Any disclosure made on or after 25 June 2013 will only be a qualifying disclosure if the worker reasonably believes that the disclosure is “in the public interest”.
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To be protected, a qualifying disclosure must meet certain conditions:
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Before 25 June 2013, a qualifying disclosure made to anyone other than a legal advisor had to be made “in good faith” for it to be protected. This requirement has now been removed.
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A qualifying disclosure to the employer is a protected disclosure.
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External disclosures in some circumstances will be protected namely where:
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the worker reasonably believes a third party (such as a client or supplier) is responsible for the wrongdoing, they can report it to that third party without telling the employer
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It is made to a “prescribed person”. Parliament has approved a list of “prescribed persons” (includes HMRC, the Health and Safety Executive) to whom workers can make disclosures, provided the worker believes the information is substantially true and concerns a matter within that person’s area of responsibility. There is no need to alert the employer
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To Government ministers
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To Legal Advisers
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Disclosure to anyone else is any protected if the worker believes the information is substantially true and does not act for gain.
What protection is afforded to a whistleblower?
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Unfair dismissals protection. The dismissal of an employee will be automatically unfair if the reason or the principal reason for that dismissal is that they have made a protected disclosure (as above). This is a day one right i.e. the employee does not require any qualifying period of service in order to commence this claim.
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Unlawful detriment. It is unlawful for an employer to subject one of its workers to a detriment (including threats, disciplinary action, loss of work or pay, damage to career prospects) on the grounds that they have made a protected disclosure. The concept of a “worker” in the whistleblowing legislation is broad and includes, among others, agency workers freelance workers, seconded workers, homeworkers and trainees, as well as employees.
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On 25 June 2013, the concept of vicarious liability was introduced into the whistleblowing regulations. The act of a worker in subjecting a “whistleblower” to a detriment is now to be treated as having been done by the employer. The employer will have a defence if it took all reasonable steps to prevent the detrimental treatment.
Why is protection of whistleblowers important to an Employer?
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Employers have an interest in uncovering wrongdoing or dangerous practices within its organisation. Encouraging the reporting of these matters through internal channels may help avoid serious accidents, fraud, regulatory breaches, or financial scandals.
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To Avoid litigation. As set out above the law protects whistleblowers who are dismissed or subjected to a detriment on the grounds they have made a protected disclosure.
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To avoid negative publicity. An external disclosure of suspected malpractice, especially to the press, will lead to the negative publicity for the employer and damage staff morale.
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To avoid criminal liability – the Bribery Act (which came into force in July 2011) contains a new strict liability corporate offence that applies where an organisation fails to prevent bribery by a person (associated) with it, including employees. The organisation has a defence if it can show that it had in place “adequate procedures” designed to prevent bribery. Guidance form the ministry of justice emphasis that this would include having an effective whistleblowing procedures that encourage the reporting of bribery.
What steps should an employer take?
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Adopt a whistleblowing policy and an anti-bribery and corruption policy
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Train staff on the policies
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Encourage staff to report matters of concerns
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Where a protected disclosure is made by a member of staff, seek advice from HR or a legal adviser before any further steps are taken.
It will be interesting to see the developments within the NHS and the protection of its whistleblowers over the coming months. In reality something needs to be done otherwise workers will stop reporting matters of concern which will be much more detrimental to the organisation.
For more information on this topic or any other employment related matter please contact Caroline or Marie on:
0113 357 1315