Whistleblowing: the need for realistic protections

“It’s about making people feel comfortable with making a disclosure. It should be made clear that the finger won’t be pointed at them if they take steps to raise a genuine concern.”

A good whistleblowing policy will say that the trust will not tolerate the victimization of staff using the policy. It will also clearly indicate the trust takes malpractice seriously and that staff won’t be at risk of losing their job if they raise a concern using the policy. Getting the policy tone right is essential and is something we work hard to try to help organizations to achieve.

These quotations come from a survey carried out by Adrian O’Dowd, Josephine Hayes, Deborah Cohen, ‘Whistle while you work’, British Medical Journal, 22 May 2010, Vol.340. p.1110-1113).

Institutions should have clear guidance tackling the perception that students will be disadvantaged if they make a complaint.
Student Charter on Institutional Complaints and Appeals Procedures of March 2010, http://www.timeshighereducation.co.uk/story.asp?storycode=410972.

Institutions should have explicit guidance that they will respond quickly to any cases where there is a break-down in relationship between the student and the person they are complaining about on the basis of their complaint.
Student Charter on Institutional Complaints and Appeals Procedures of March 2010, http://www.timeshighereducation.co.uk/story.asp?storycode=410972

It is not easy for managements to received a ‘concern’ without seeing it as an attack on their own competence or conduct.

There has been a problem with whistleblowing in that people have gone to management and then been warned not to do anything further for fear of bringing the trust into disrepute (‘Whistle while you work’).

Why not be realistic about these dangers and aim for a culture-change in your institution?  Attempted reprisal against complainants and those raising concerns should be taken seriously.

It is never acceptable to warn against raising concerns with threats that the action will be deemed to constitute a breach of the employment contract which contains a clause about not bringing the institution into dispute.

Do not frighten the horses

There are special features of whistleblowing in medicine because of the problem of protecting patient confidentiality, but similar considerations about the protection of vulnerable individuals apply in higher and further education too. Students can easily be branded as ‘troublemakers’ if their names are attached to the raising of a concern. Academics may work in small specialist communities where they can easily become ‘demonised’ and their professional futures compromised, if their names become associated with the raising of a concern.

Practical whistleblowing and good governance:

The protections a whistleblower ought to be able to expect and which the Committee on Standards in Public Life looks for, are set out in Public Concern at Work’s Whistleblowing Best Practice Guide.

The Committee on Standards in Public Life says:

“The essence of a whistleblowing system is that staff should be able to by-pass the direct management line, because that may well be the area about which their concerns arise, and that they should be able to go outside the organisation if they feel the overall management is engaged in an improper course.”

In making this work, the Committee has said that “leadership, in this area more than in any other, is paramount” and that the promotion of the whistleblowing arrangements is critically important. The Committee has long distinguished a ‘real’ internal whistleblower from an anonymous leaker to the press and has recently stressed that the Public Interest Disclosure Act should be seen as a `backstop’ for when things go wrong and not as a substitute for an open culture.

http://www.pcaw.co.uk/organisations_pdf/best_practice_guide.pdf

The Committee on Standards in Public Life recommends that a whistleblowing policy should make the following points clear:

  1. The organisation takes malpractice seriously, giving examples of the type of concerns to be raised, so distinguishing a whistleblowing concern from a grievance.
  2. Staff have the option to raise concerns outside of line management
  3. Staff are enabled to access confidential advice from an independent body
  4. The organisation will, when requested, respect the confidentiality of a member of staff [or a student] raising a concern.
  5. When and how concerns may properly be raised outside the organisation (e.g. with a regulator).It is a disciplinary matter both to victimise a bona fide whistleblower and for someone to maliciously make a false allegation.

http://www.pcaw.co.uk/organisations_pdf/best_practice_guide.pdf

Implications for good governance

The Institute of Chartered Accountants in England & Wales has produced guidance on the whistleblowing obligations that companies have under the Combined Code on Corporate Governance. They recommend that companies include the following questions when they review the efficacy of their arrangements:

  • Are there issues or incidents which have otherwise come to the board’s attention which they would have expected to have been raised earlier under the company’s whistleblowing procedures?
  • Are there adequate procedures to track the actions taken in relation to concerns made and to ensure appropriate follow-up action has been taken to investigate and, if necessary, resolve problems indicated by whistleblowing?
  • Have confidentiality issues been handled effectively?
  • Is there evidence of timely and constructive feedback?
  • Have any events come to the committee’s or the board’s attention that might indicate that a staff member has not been fairly treated as a result of their raising concerns?
  • Is a review of staff awareness of the procedures needed?

http://www.pcaw.co.uk/organisations_pdf/best_practice_guide.pdf

Many PID codes mention disciplinary sanctions against whistleblowers. A potential whistleblower can reasonably be fearful of the consequences of raising a concern when these go beyond trying to prevent malicious and vexatious ‘concern-raising’ and cover
circumstances in which the whistleblower is deemed to have failed in loyalty to the employer or to have damaged the institution’s reputation.

The damage a whistleblower can expect to suffer may be much more subtle than finding himself or herself facing a disciplinary procedure.

“I knew I was going to be isolated and that there would be suspicion about me…there were certain individuals who were still not happy with me several years later.”

(Adrian O’Dowd, Josephine Hayes, Deborah Cohen, ‘Whistle while you work’, British Medical Journal , 22 May 2010, Vol.340. p.1110-1113).

See too: Patricia Leighton, ‘The startling case of Professor Buckland: or what can happen if you claim you are protecting academic standards!’ The Law Teacher, 44 (2010), 212-7, p.214.