Defending Excellence: In Support of Whistleblowing

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1 Defending Excellence: In Support of Whistleblowing Sinead King 36 Bedford Row London WC1R 4JH T +44 (0) F +44 (0) civilclerks@36bedfordrow.co.uk Web address

2 What it is and why it s worth defending Misconceptions: disclosure as stepping outside organisation Providing information to employer, regulator or other to alert them to a problem Facilitates good decision-making, correcting mistakes before they escalate or intervening after they have Designed to reduce repeat of Zeebrugge disaster, Piper Alpha, Robert Maxwell, LIBOR-rigging and Mid-Staffs In healthy organisations risk free, routine, expected

3 How the law works The Protection: (a) The right - not to be dismissed s103a Employment Rights Act 1996 ( ERA ); or subjected to a detriment s47b ERA (b) The remedy: uncapped compensation, including injury to feelings awards for detriments. Public Concern at Work: highest whistleblowing award 3.8 million, the lowest 1,000, and the average 113,677. By comparison the average unfair dismissal award is somewhere in the range of 12,000.

4 PROTECTS WIDE CLASS OF WORKER Includes all NHS Contractors, whether employed or self-employed And students, work-experience trainees s43k ERA

5 BUT ONLY 6 CATEGORIES OF INFORMATION 43B In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following-- (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

6 AND DIFFERENT RULES APPLY DEPENDING ON WHO THE DISCLOSURE IS TO: Internally: emphasis is on employer conducting own inquiry (1) reasonably believed that conveying the information was in the public interest (ie not where- limited to private dispute between employer and worker with no wider implications: low threshold) (2) reasonably believe the information tends to show one of the 6 categories of wrongdoing. (3) No requirement to prove thought information was true Externally higher thresholds before protection engaged

7 External disclosures Quasi-internal (a) to organisation responsible for services subject to problem ie. third party contractor must also have reasonable belief third party contractor is responsible: s43c (a) (c) Prescribed Persons : s43f includes the Secretary of State for Health, NHS Trust Development Authority, NHS England, NHS Business Services Authority, Health Education England, Care Quality Commission, Health and Care Professions Council, The Nursing and Midwifery Council, General Chiropractic Council, General Dental Council, and the GMC: worker also reasonably believes: (i) the matters fall within the remit of the Prescribed Person; (ii) that their information is substantially true in other words, they have to have conducted a sufficient evaluation of the information, including whether they need more before voicing their concerns Legal Advisers : s43d

8 Wider Disclosure (a) Where employer can t be trusted: s43g additional requirements: the worker must reasonably believe the information disclosed and allegation made are substantially true; Disclosure must have previously been made to employer or a prescribed person; alternatively the worker believes they will be subject to detriment or that material evidence will be destroyed; In all cases, disclosure not made for purposes of personal gain; (a) Extremely serious cases: s43h additional requirements The worker must not make the disclosure for the purposes of personal gain. In all the circumstances of the case, it must be reasonable for the worker to make the disclosure, having regard, in particular, to the identity of the person to whom disclosure was made. the worker must reasonably believe that the information disclosed and any allegation contained in it are substantially true.

9 In practice Solutions Focus Treat issues of public interest as concerns, deal with at appropriate part of organisation Focus: solve problems effectively Participation: all employees, when problems arise Litigation Focus Treat whistleblowing and consequent reprisals as employment issue Focus: wait out or win tribunal proceedings Participation: employees with nothing left to lose

10 Mattu v University Hospitals Coventry and Warwickshire NHS Trust Cardiologist from Coventry Hospital Concern: patient safety - practice of placing 5 cardiac patients in a unit built for 4. Raised internally then externally Detrimental treatment: 200 allegations of bullying, fraud, sexual impropriety raised with GMC. All dismissed Suspension for over 5 years

11 Effective Use of Resources? 10 year case Full salary during suspension Costs of 2 locums to provide cover Private investigators to follow Dr Mattu PR company Legal costs Management time in hearing preparation and attendance Deskilled cardiologist Reputational damage

12 IN CONCLUSION Focus: reporting potential problems at the right time to the right person in order to solve them Common sense not just legal sanction - suggests it is better to deal with the problem than shoot the messenger The alternative is waste resources engaging in a war of attrition delay, deny and defend. Freedom to Speak Up Guardians within Trust and National Guardian (But Dame Eileen Sils resigned this morning)?

13 36 Bedford Row London WC1R 4JH T +44 (0) F +44 (0) civilclerks@36bedfordrow.co.uk Web address