WHISTLEBLOWING GUIDANCE

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1 WHISTLEBLOWING GUIDANCE 1

2 Whistleblowing Guidance Introduction 1. This guidance accompanies the NHS LA s Whistleblowing Policy, which deals with the process for staff to raise concerns about internal whistleblowing matters. 2. The nature of the NHS LA s work means that, from time to time, it also receives expressions of concern from external organisations or individuals. This guidance also covers the process for handling such concerns. What is whistleblowing? 3. Whistleblowing is the term used for when an individual raises a genuine concern that one or more of the following has occurred, is occurring, or is likely to occur: A criminal offence; A failure to comply with a legal obligation; A miscarriage of justice; The endangering of an individual s health and safety; Damage to the environment; Deliberate concealment of information tending to show any of the above. Why is a clear whistleblowing process important? 4. The NHS LA is committed to dealing responsibly, openly and professionally with any genuine concern raised about possible or actual wrongdoing, malpractice or safety risk in the workplace, affecting its employees, workers, patients, the wider public, or the NHS LA itself. 5. Clear and open procedures for raising and handling concerns can help to achieve the desired standards of governance and behaviour. They also allow the NHS LA to identify potential problems early, so that they can be dealt with accordingly; help to deter wrongdoing; and maintain and enhance a safe and effective organisation. 2

3 General principles that underpin the Whistleblowing Policy 6. These principles underpin all cases of whistleblowing and the handling of them by the NHS LA, whether the concerns are raised internally by an employee or worker, or are raised with the NHS LA by an external individual or body. 7. The NHS LA endeavours to promote a transparent and accountable culture where an employee or worker, or anyone from outside the NHS LA who has a genuine whistleblowing concern, feels it is safe and appropriate to raise the concern openly. 8. The NHS LA is mindful that, the sooner important information is brought to the attention of the right people, the sooner the matter can be dealt with, which is especially important where public money and patient safety are concerned. The NHS LA discourages people from delaying in reporting genuine concerns, so that they can build up evidence, or carry out their own investigations. 9. No worker, employee, external individual or body will be victimised or subjected to any detriment for raising a genuine whistleblowing concern. The same protection will not, however, extend to those who maliciously raise a concern that they know to be false. In cases concerning members of staff, anyone subjecting an individual to any reprisal, could themselves, face disciplinary action. Confidentiality 10. Whilst the NHS LA hopes that individuals and external bodies will feel able to voice their concerns openly, it is accepted that, in certain circumstances, there may be a reluctance for a whistle-blower to reveal their identify at the outset. The NHS LA will make every effort to keep an identity secret, but if it is necessary for anyone investigating the concern to know the identity, this would be discussed with the individual or external body first, unless otherwise required by law. A Line Manager faced with this situation should speak to a member of HR, for further advice. 11. The NHS LA does not encourage staff, or anyone from outside of the organisation, to make disclosures anonymously. Proper investigation may be more difficult or impossible if the NHS LA cannot obtain further information or clarification. It is also more difficult to 3

4 establish the credibility of allegations. Consequently, if a concern is raised anonymously, the NHS LA will assess the information and determine whether it is feasible or prudent to carry out further investigation. Internal Whistleblowing Procedure The Process Before raising a matter of concern 12. Staff should always first consider the nature of their concern, and whether it is best dealt with under the Whistleblowing Policy, or another policy, such as the NHS LA s Grievance Policy and Procedure. The best distinguishing factor is whether the concern has a public interest aspect to it, rather than being solely about the member of staff s own employment ie. a dispute with a colleague. The criteria set out at paragraph 3, above, also need satisfying. 13. Once a concern is brought to the attention of a member of management, this should be raised with the HR department as soon as possible. HR will consider the facts, and decide how best to deal with the matter. Raising a concern who to raise it with The NHS LA encourages openness, and wants to ensure that genuine concerns are brought to its attention, so that they can be fully investigated. The following reporting line should be adopted, wherever possible, so that concerns can be dealt with in the most appropriate, and efficient way, and escalated where required. A flowchart, setting out how to consider and deal with a concern can be found at Appendix 1, and anyone dealing with a concern should have reference to this. Line Manager 14. In the first instance, a member of staff is encouraged to raise their concerns with their immediate Line Manager. 15. If the concerns are raised verbally, Line Managers should listen carefully and not prejudge the issues. Line Managers should also take notes of the meeting, and the 4

5 concern, and treat the information with the strictest confidence, informing the individual that their identity will not be disclosed without their prior consent. 16. Line Managers should have reference to Appendices 1 and 2 of this guidance, when considering the concerns brought to their attention Another Senior Manager 17. If the member of staff does not feel confident raising a concern with their Line Manager because they reasonably believe their Line Manager to be involved, or for any reason does not wish to approach them (i.e because they had raised the matter previously with their Line Manager and do not consider it had been properly considered/dealt with), then the member of staff should inform another Senior Manager about their concerns. 18. If a Line Manager does not feel able to deal with the concern, for whatever reason, they should encourage the member of staff to raise the matter with another Senior Manager, rather than ignore the concern, or delay the investigation. 19. The Senior Manager should take appropriate action, which may include arranging for another manager to review the investigation carried out, making further enquiries and making a report to the Board, as appropriate. The Senior Manager should also make notes of the process, the concerns, and any relevant information that comes to their attention. 20. Senior Managers should have reference to Appendices 1 and 2 of this guidance, when considering the concerns brought to their attention Director of Human Resources 21. If the member of staff does not consider that it is appropriate to approach either their Line Manager or another Senior Manager for any reason, they should approach the Head of Human Resources who will liaise with the Chief Executive about an investigation. 22. The Head of Human Resources should take notes of the meeting, and the concern, and treat the information with the strictest confidence, informing the individual that their identity will not be disclosed without their prior consent. 5

6 23. The Head of Human Resources should have reference to Appendices 1 and 2 of this guidance, when considering the concerns. Chief Executive 24. If the member of staff does not consider it appropriate to approach their Line Manager, another Senior Manager or the Head of Human Resources for any reason, they may approach the Chief Executive directly, but they will need to explain their grounds for the direct approach, particularly as this limits the ability for the matter to be further escalated. 25. The Chief Executive should have reference to Appendices 1 and 2 of this guidance, when considering the concerns. External disclosures 26. The Whistleblowing Policy aims to provide an internal mechanism for reporting, investigating and remedying any wrongdoing in the workplace, and it is hoped that, in most cases, a member of staff would not find it necessary to alert anyone externally. 27. Nevertheless, the law recognises that in some circumstances it may be appropriate for a member of staff to report their concerns to an external body, such as a relevant regulator. 28. If management is informed that a member of staff intends to disclose information to a regulator, such as NHS Protect, the Secretary of State for Health, or HM Revenue & Customs, it should remind the member of staff of the internal process, and encourage this to be used in the first instance. 29. Management should also remind the member of staff to contact the Human Resources Department, their Trade Union representative or Public Concern at Work for guidance, if they are unsure about anything. 30. If the member of staff is adamant that they want to raise their concern with an external regulator, management should not prevent the member of staff from doing so, or subject the member of staff to any detriment, or disciplinary action. 31. It will very rarely, if ever, be appropriate for a member of staff to alert the media of their concern. If a member of staff raises their intention to do this to a member of 6

7 management, management should speak to the HR Department as a matter of urgency. Investigating concerns 32. Once a concern has been raised, an assessment will be made as to whether it should be managed under the Whistleblowing Policy. 33. If the concern is raised with a Line Manager, they should seek advice from the HR Department, on a confidential basis. 34. In undertaking the assessment, the person with whom the concern was raised, in conjunction with the Director of Human Resources, will consider the information in the context of what is known about that particular area or activity. From this, and on the assumption the information is genuine, and well-founded, they will assess: how serious and urgent the risk is; whether the concern can best be dealt with under the Whistleblowing Policy or some other policy or procedure; and whether the assistance or referral to Senior Managers or a specialist function (such as security) will be desirable or necessary. 35. The person with whom the concern was raised will also establish: if the individual is anxious about reprisals (and try to offer reassurances); where the approach is direct to a Senior Manager, Head of Human Resources, or the Chief Executive, whether the individual has raised the concern with their Line Manager and if not, why not, and also, with what effect; when the concern first arose and, where relevant, what is prompting the individual to speak up now; and whether the information is first hand or hearsay. 36. The person with whom the concern was raised will - with support from the HR Department arrange an investigation of the matter, either by investigating the matter personally, or immediately passing the issue to an appropriate colleague. The person with whom the concern was raised will inform the member of staff the identity of the investigating officer, and the progress of the investigation, including asking them to comment on any additional evidence obtained. Any investigation will be carried out in accordance with the principles above. 7

8 37. The person who carried out the investigation will then report to the Chief Executive, who will take any necessary action, including reporting the matter to the Board and any appropriate government department or regulatory agency. 38. If disciplinary action is required, this will be recommended in the report, following a discussion with the Chief Executive and the HR Department. 39. HR is responsible for receiving, sifting and referring whistleblowing concerns on to the appropriate business area to manage and investigate the alleged wrongdoing. This ensures that where, for example, a concern is raised about an environmental, safety or security risk, it is the people with the necessary technical experience who handle any substantive investigation. HR would also deal independently with any disciplinary issues that might arise from the whistleblowing concern. 40. The Head of Human Resources will be informed of all potential whistleblowing cases for reasons of good governance and record keeping. The HR Department will maintain records of all whistleblowing cases reported and their outcome, liaising with the investigating officer of the whistleblowing concern to ensure a full record. Support from Trade Unions 41. The NHS LA recognises, acknowledges and endorses the role the Trade Unions and their representatives play in this area. Staff may wish to seek advice and be represented by their Trade Union representatives when using the whistleblowing procedure. Outcome of the investigation 42. On conclusion of any investigation, the member of staff who raised the concern must be informed of the outcome of the investigation and what action has been taken, or is proposed, subject to the normal requirements to protect the confidentiality of colleagues. If no action is to be taken, the reason(s) for this should be explained. 43. If the member of staff who raised the concern is unhappy with the way in which their concern has been handled, they should be encouraged to raise this with the Director of Human Resources, if appropriate, in the first instance. If they continue to be dissatisfied, the member of staff should be informed of their right to contact the chairman of the organisation, or one of the non-executive directors of the Board. 8

9 44. It may be the case that the member of staff continues to remain dissatisfied, to the extent that they choose to leave the organisation. If this is the case, the member of staff s Line Manager should inform the HR Department as a matter of urgency, and a meeting should be arranged to try and understand, and where possible resolve, the member of staff s ongoing concerns. 45. The above principles should continue to be adhered to, namely that the member of staff should not be victimised or subjected to any detriment for raising a genuine concern under the Whistleblowing Policy. This includes whilst they remain in the NHS LA s employment, and beyond it i.e in relation to a reference request. Settlement agreements 46. The NHS LA is committed to dealing responsibly, openly and professionally with any genuine concern that a member of staff may have about wrongdoing, malpractice or safety risk in the workplace. At no point, during an individual s employment or after it, would the organisation try and sweep-under the carpet, or cover up any genuine concern. 47. As such, any settlement agreement prepared by the NHS LA, for whatever reason, irrespective of including confidentiality clauses, does not prevent an individual from raising legitimate concerns about patient safety, or any other issue in the public interest, under the terms of the Public Interest Disclosure Act 1998 ( PIDA ). External Whistleblowing Procedure 48. Serious complaints, similar in nature to whistleblowing complaints, but raised by those external to the NHS LA, such as politicians, patients/service users or members of the public, can still have serious consequences and implications. 49. As such, the NHS LA has clear procedures to ensure it deals with such complaints consistently, and fairly, and that appropriate action is taken where necessary (see Appendix 3 for a flowchart). 50. All external concerns received will be logged, by the Corporate Governance Department on to a tracking system to maintain a central record. Where any other 9

10 department, or individuals, are contacted directly, concerns should be referred to Corporate Governance Department with a note outlining the concern, where possible. 51. A Senior Manager will review all complaints against the whistleblowing criteria and decide how best to deal with a concern. It may be that the Senior Manager undertakes, or commissions, an investigation of the complaint, similar to that set out above, for NHS LA members of staff, or by an independent consultant. Alternatively, it may be appropriate for the Senior Manager, following discussions with the Chief Executive, to refer the complaint to an external body, including for example, the NHS Counter Fraud Service, to ensure that appropriate action is taken in response to the concern raised. 52. The NHS LA will inform the source of the concern - unless it is received anonymously - what action the organisation has taken. The tracking system will also be updated by the Corporate Governance Department to ensure a complete and accurate record is held. 53. There may be some cases where the NHS LA may want to take further action, including possible disciplinary action, or changing practices and procedures. The role of the person investigating the concern would include considering what, if any, further action the NHS LA should take. 10

11 Appendix 1 Flowchart for handling internal (whistleblowing) concerns Concern is raised by member of staff Is it a concern involving a public interest aspect? Y N Adopt the Whistleblowing Policy Discuss with HR whether it is appropriate to deal with the concern under the Grievance Policy and Procedure, or some other Policy Are you the Line Manager for the person raising the concern? Y Take a full written record of the concern and liaise with HR. Either undertake or refer the matter on for investigation. Inform the person making the complaint of the outcome of the investigation, and any action that will be taken (if any) remember to comply with confidentiality obligations. Inform the individual of their options if they are not happy with the way the matter has been investigated. N Speak to the person raising the concern and suggest that they refer the matter to their Line Manager. If they don t want to, seek guidance from HR. You may be a Senior Manager, and if so, it may still be appropriate for you to undertake or refer the matter for investigation (once you have tried to determine the reason why the person making the complaint doesn t want to raise it with their Line Manager). Alternatively, it may be better placed with someone else. 11

12 Appendix 2 Process for those handling a whistleblowing concern raised by a member of NHS LA staff Concerns may be raised in writing, or verbally. If a concern is raised verbally, a written record should be kept, noting the details of the concern. Once a concern has been raised, an assessment will be made as to whether it should be managed under the Whistleblowing Policy. The person with whom the concern was raised should seek advice from the HR Department, on a confidential basis. The person with whom the concern was raised will - with support from the HR Department arrange an investigation of the matter, either by investigating the matter personally, or immediately passing the issue to an appropriate colleague. The person with whom the concern was raised will inform the member of staff the identity of the investigating officer, and the progress of the investigation. Once the investigation is complete, the person who carried out the investigation will report to the Chief Executive, who will take any necessary action, including reporting the matter to the Board and any appropriate government department or regulatory agency. Feedback on the outcome of the concern will be provided to the person who raised the concern. Due to legal obligations of confidentiality owed to other members of staff, however, it might not be possible to freely provide feedback on the outcome of any disciplinary action taken against another member of staff. Strict confidentiality should be maintained, especially if unlawful conduct, discrimination, bullying or harassment forms the subject of the complaint. No presumptions of guilt (or innocence) should be made, pending the outcome of an investigation. The investigation may have to consider the weight and quality of the original accusation. Where fraud is suspected the NHS LA s fraud procedure should be invoked. If the member of staff who raised the concern is unhappy with the way in which their concern has been handled, they should be encouraged to raise this with the Head of Human Resources(if appropriate), in the first instance. If they continue to be dissatisfied, the member of staff should be informed of their right to contact the chairman of the organisation, or one of the non-executive directors of the Board. 12

13 Appendix 3 Process for handling external (whistleblowing) concerns Concern is raised by person/body outside of the NHSLA Refer to HR department for them to log the complaint on a tracking system, to maintain a central record Is it a concern involving a public interest aspect? N Senior Manager to undertake or commission an investigation into the complaint, including, where appropriate, instructing an independent consultant. Y Senior Manager to liaise with Chief Executive, and, where appropriate, refer the complaint to an external body, to ensure that appropriate action is taken in response to the concern raised. Consider, with the input of HR whether the matter should be dealt with under any other NHSLA policy or procedure. Inform the individual who raised the complaint, the action that the NHSLA has taken, if any. HR to update the tracking system to ensure an accurate central record is held. 13

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