WB UK. Fighting for Justice for Whistleblowers

Transcription

1 Page1 Whistleblowers () Statement to the Department of Business, Innovation and Skills Whistleblowing Commission Call for Evidence Current Situation The Mid-Staffordshire NHS Foundation Trust PI, United Lincs Hospital, Winterbourne View and Orchid View incidents have energised the politicians and the Public. Publicity about Whistleblowers being bullied, coerced and unfairly sacked and Gagging Orders imposed with payoffs made from NHS funds (Taxpayer sourced but not notified) has made it harder for the Government to ignore the low paid whistleblowing worker / frontline nurse. The same issues exist in other work / commercial sectors but are not as easily seen, or attract such public interest because there hasn't been such an obvious link between maltreatment of a Whistleblower and the impact on General Public. After much pressure by Whistleblowing Charities such as Patients First and Compassion in Care, gagging clauses in the NHS have now been banned. But this is only the first skirmish: we now want an end to bullying managerial practice, an end to unjust internal disciplinary process and a closing down of the money supply for payoffs especially within the Public Sector. Taxpayer s money should NOT be used to cover up failures in the care process or management incompetence. It was clear from the National Audit Office report, presented to the Public Accounts Committee in July 2013, that the Department of Health and Treasury had no idea how much public money was being spent in this way. The next major step is to ensure that the inspectors and regulators now interview Whistleblowers as part of the inspection process. The Whistleblower Experience Whistleblowers () is unique in having a whistleblowing membership drawn from across all sectors of British society (Commercial/ Industrial, Financial, Defence and Security, Legal, Healthcare and NHS). has recognized the commonality of some key issues, regardless of the diversity across the membership and has developed the following strategy in recognition of these key needs: Whistleblower Protection The whistleblowing process can entail three crimes not one: there is the initial culpable crime of abuse or wrongdoing that is observed and reported; there is the crime of individual or corporate cover up and there is the crime of coercion to

2 Page2 ensure the silence or cowing of the whistleblower. The very act of blowing the whistle makes the whistleblower vulnerable to attack, bullying and isolation. Therefore any effective mechanism to protect the whistleblower must be initiated before the act, in order to define and register a point in time and steady state of affairs against which all subsequent actions and circumstances can be measured. Effectively it is a point at which the whistleblower is registered with an independent external registrar, the clock started and effectively protected right from the outset of the process. The Company / Organization being reported on is then put on notice that a registration has been made and that all actions thereafter will be subject to reappraisal with a legal requirement to safeguard the status, employment and character of the whistleblower. The registration process might well be extended to enact the same legislation for whistleblowers that is successfully found within the Proceeds of Crime Act. This establishes a legal requirement for a named and trained Proceeds of Crime officer who is allegedly culpable and can be charged with criminal offences within the organization / corporate company. The biggest problem for whistleblowers is to voice legitimate concerns without incurring any recriminations, abuse or subsequent detriment. A legally named Whistleblower contact in organisations, who ideally should be without the executive management chain, would be seen as part of the registration process, an internal Guardian Angel, who is legally responsible for ensuring that the whistleblower is protected, whilst still in the same employment, and with the role and responsibilities. There should also be a legal obligation for companies to report internal whistleblowing allegations to the appropriate authority and this could be tied to the initial registration by the External Registrar. This will put the onus on the employer to behave appropriately and ensure that all of their employees do so as well. Above all, whistleblowers are more than likely to be saving money and reporting legitimate concerns for the benefit of the employer and thus viewed as a company asset not a liability. We have Health and Safety, Human Resources so why not a legally responsible Whistleblower Officer? The concept of whistleblower registration will be discussed in greater detail in a separate paper and in discussions with BIS. The Employment Tribunal and Court Process

3 Page3 welcomes a tightening of the law regarding vicarious liability by employers, under the Employment Regulatory Reform Act (June 2013), for the actions of all of their employees in regard to treatment of whistleblowers. But, our experience is that whistleblowers lose in the Employment Tribunal and other Court processes. does not believe that PIDA works effectively or that it should be held up in its current from as an example of good legislation. also does not believe the Employment Tribunal system is working to protect whistleblowers effectively. The overwhelming experience of our Whistleblower members is that the laws meant to protect employees who wish to report abuse and fraud have failed to do so and whistleblowers end up worse off by entering into an unbalanced conflict in the ET process. The imbalance in financial resources, and consequent access to professional legal advice and support makes it an unfair battle. Corporate or medium/large scale organizations can afford to draw out the legal process to wear away an individual s funds (normally personal or family savings) in order to break the ability of the whistleblower to pursue his/her case effectively. Therefore seeks an alternative process whereby whistleblowers can have equal access to a fair, informed and open authority where they can voice their concerns, represent their case against any unfair behaviour, (subsequent to the registration of their status as a whistleblower (see above) and seek compensation for the stresses, strains and detriment caused to them by the act of blowing the whistle. Such a hearing should be held before a (clearly) independent arbiter and without legal representation by either side so that it is a fair and balanced playing field / battle ground. Individual costs should be absolutely minimised and the cost of the arbiter/ support structure should not be from the Public Purse but be found out of a fund made up from a percentage of the fines levied upon abusive/ corrupt wrongdoers of culpable organizations. One might even call such an organization the Office of the Whistleblower () following the US precedent in part. The Cost of Blowing the Whistle Being a whistleblower is not a career option; one is thrown into the role through circumstance, observation of wrong-doing and a decision to do something about it. If senior management and corporate culture were more inclined to accept and respond to internal complaints properly then there would be no need to 'blow the whistle' externally. Moreover, if complainants/ whistleblowers were acclaimed not vilified, and looked after not demeaned, then Society might recognize the courage of the act, not look askance at a potential troublemaker who upsets the status quo and disrupts the harmony of the workplace. The true cost of blowing the whistle is found in the stresses and strains of going outside the normal process, the ensuing workplace isolation, bullying and coercion to keep silent, the loss of job/career and subsequent inability to find work

4 Page4 within the same industrial sector. Then there are the secondary effects: the reduction in salary or remuneration, the erosion of personal/ familial savings, the expensive ET/ Court process, the wear and tear on the family and an inevitable impact on physical, mental and psychological health and well-being. The lower the pay level, and consequent savings, of the whistleblower at the start of the process, the greater the impact of reduction in livelihood and consequent effect on personal health. The true cost of whistleblowing is very hard to prove especially by an impoverished individual facing the wealth and expert legal advice that major corporations and large organizations have access to and can afford. Another essential issue which is often missed is the isolation felt by the whistleblower after they have made their disclosure to the relevant authorities. Too often, the whistleblower is left uninformed about the progress of an investigation, handling of the complaint/ disclosure, how or even if any remedial steps have been taken and whether the act of disclosure has had, or will have, any positive outcomes. We suggest that an Office of the Whistleblower might also have a responsibility for handling information to be supplied back to the whistleblower and ensuring regular feedback to lessen the inherent isolation that currently ensues. Compensatory Damages True whistleblowers are not motivated by thoughts of financial gain. Whistleblowing IS about righting injustice and not about lining one's pockets. But let us also recognize the great price that most whistleblowers pay for their act of courage and try to find some way to compensate them for the cost of their actions and put them back on their feet. It is misleading for Governments and Regulators to present a black and white case for Financial Incentives, with some massive bounty scheme based upon the US system, as the only solution. It induces the idea of whistleblowers doing it for the money and leaves a major point of vulnerability where a defence barrister could easily try to undermine a whistleblower s credibility by questioning their very motivation. David Green, Director of the Serious Fraud Office has recently made this very point not as a measure of his lack of support for such a policy, but rather as a point of worry from a prosecutorial viewpoint about the potential undermining of vulnerable witnesses by sharp defence counsels. The Home Office s Organised and Serious Crime Strategy document, published on 7 October 2013 to coincide with the launch of the s new National Crime Agency, made reference to the fact that the Government would be considering the case for incentivised whistle-blowing in instances of fraud, bribery and corruption, as well as potentially providing citizens with qui tam rights allowing private citizens to sue, on the Government s behalf, companies and individuals that were defrauding the Government. It is argued that a reward system for whistle-blowers would have the knock-on effect of forcing companies to implement

5 Page5 better compliance programmes to prevent wrongdoing and might encourage more corporates to self-report corruption. Consideration might also be given to potential immunity from prosecution for those whistleblowers who are first to report having previously participated in, been complicit to, or been wilfully blind to wrongdoing in their place of work. is seeking a means of "compensation for risks undertaken by Whistleblowers" and believes that terms such as Bounty, Financial Incentives or Reward are wholly inappropriate. Compensation should recognize the risks taken by the whistleblower, the importance and originality of the information supplied and the contribution the whistleblower has made in bringing the wrongdoer to account. Any compensation should be found not from the Public Purse but be found out of a fund made up from a percentage of the fines levied upon abusive/ corrupt wrongdoers of culpable organizations. Such Compensatory Damages should NOT be judged or levied by the Employment Tribunal process but might well be administered by the same organization as indicated above (the Office of the Whistleblower ()) which itself should be established and paid for from the same source of Fines funding. Initial seed funding might be need from Central Government but this could be repaid by a percentage of the same fines funding (see US precedent). also seeks to redress the imbalance of compensation between whistleblowers from different industrial sectors. This could be achieved by the establishment of a Central Compensatory Fund, again found out of a fund made up from a percentage of the fines levied upon abusive/ corrupt wrongdoers of culpable organizations. This would provide a means by which a central pool of funding can allow a more balance scheme of whistleblower compensation across all sectors (e.g. to allow some level of compensation for a nurse or healthcare worker without imposing on the Public Purse). Our suggestion is of four way (25%) split of fines accrued from the successful prosecution of wrongdoers: say, for instance, 25% to the initiating Whistleblower; 25% to a Whistleblower Central Pool to fund damages to whistleblowers from the Public Sector; 25% to the Office of the Whistleblower to cover administrative costs, so that it is not a burden to the Public Purse and a final 25% to the Treasury, because they ll never let you out of giving something back to central funds. Such a scheme should also review and undertake restorative justice for those current whistleblowers from all sectors whose careers have been blighted by their whistleblowing and who have consequently suffered financially from bringing attention to wrongdoing in the workplace.