Comment

Whistleblowing reforms

The Francis inquiry into care at Mid Staffordshire NHS Trust and the furore over ‘gagging clauses’ has placed whistleblowing in the spotlight for NHS employers. Robert Davies (partner) and Val Dougan (professional support lawyer) of the employment team at national law firm Dundas & Wilson explain the situation.

The Francis inquiry concluded that no single individual was to blame for the significant lapses in patient care. Instead it pointed to a cultural failing on a systemic scale. Individuals did not want to speak up, which contributed to poor judgements over what was a reasonable standard of care, exemplified by evidence from a staff nurse that she was physically threatened by colleagues after she raised concerns about the standards in the A&E department.

Organisational (or so-called institutional) failings are by no means the sole preserve of the NHS. The food manufacturing industry, the banks and the BBC have all run the gauntlet of public anger. A common thread is the belief that many of these widespread issues could have been prevented if workers had spoken out at an early stage and been listened to by decision-makers.

The Government intends to reform the law protecting the rights of whistleblowers to further encourage sharing of potential concern. Such a change “would serve to focus attention on the message rather than the messenger.”

The public interest requirement

The Government has been intent on ‘closing the loophole’ which gives whistleblowers the ability to rely on a breach of their own contract of employment as amounting to a protected disclosure.

The loophole stems from the case Parkins v Sodexho, which said that the requirement in the Public Interest Disclosure Act (PIDA) that a whistleblower will be protected for reporting a breach of a legal obligation was wide enough to cover a breach of the individual’s own contract of employment.

Viewed as anomalous and contrary to the public interest focus, PIDA will therefore be amended to require that there must be a public interest element to the specific complaint, thus excluding a breach of an individual’s own contract.

Removal of the requirement that a disclosure is made in good faith

The Government recently announced that it also plans to remove the requirement that a disclosure should be made in good faith. Concerns were raised that the insertion of the public interest requirement may prove to be another hurdle for claimants to overcome.

As a means of counterbalancing this, the requirement that exists at present that the disclosure must be made in good faith will be removed. An employee who has made a complaint which is not in good faith may have their compensation reduced by up to 25%.

An allegation which is not believed to be true by the complainant and which is made for a personal motive is almost inevitably likely to be viewed as not in the public interest.

Further protections – protection from harassment from co-workers

As a direct result of evidence to the Francis inquiry, the Government plans to provide additional protection to workers who blow the whistle by protecting them from bullying by their co-workers. If a worker is subjected to detrimental treatment from a colleague because of their protected disclosure, the employer may be responsible unless they took all reasonable steps to prevent it.

Employers should be updating relevant policies and training materials to explain to staff that they should not treat a colleague any differently because they have raised a concern.

Although some employers may have experience of protected disclosures being confined to tactical measures seeking to remove the unfair dismissal compensation cap, there is likely to be a wider value in being seen to prepare and communicate a specific whistleblowing policy within an organisation particularly as more whistleblowing claims may be anticipated in the wake of the recent coverage.

Commission into whistleblowing

The whistleblowing charity Public Concern at Work has launched an independent commission to examine the effectiveness of the existing whistleblowing legislation and consider proposals for reform.

The commission members include Gary Walker, the former chief executive of United Lincolnshire Hospitals Trust, who recently hit the headlines for speaking out about a ‘gagging clause’ in his compromise agreement which prevented him talking about the concerns that he had raised about patient safety, thus leading to his departure.

From a legal perspective, any provision which stops a worker from making a protected disclosure is void, meaning that any attempt to silence a genuine whistleblower would be expected to be unenforceable.

The Department of Health intends to meet this head-on by explicitly ensuring that any post-termination confidentiality restrictions cannot extend to the subject matter of protected disclosures. The health secretary recently announced that the Government will not approve any compromise agreements with a confidentiality clause that prevent people speaking out about patient safety or patient care.

Ultimately, greater legal protection to speak out will not be a panacea to prevent systemic malpractice: demonstrable cultural change via open leadership will be just as important.

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