1. FOURTEEN YEARS OF WHISTLEBLOWING LEGISLATION IN THE UK: WHERE IS THE EMPLOYMENT PROTECTION? 1 d.b.lewis@mdx.ac.uk

2. WHAT SHOULD BE THE OBJECTIVES OR PURPOSES OF LEGISLATION? POTENTIAL PURPOSES : PROTECT DISCLOSERS (THIS IS THE SOLE PURPOSE OF PIDA 1998 ) FACILITATE/PROVIDE MEANS FOR DISCLOSURES INVESTIGATE DISCLOSURES ENCOURAGE DISCLOSURES DEAL WITH DISCLOSURES/IMPROPRIETY 2

3. QUALIFYING DISCLOSURES SECTION 43B OF THE EMPLOYMENT RIGHTS ACT 1996 (ERA 1996) DEFINES A "QUALIFYING DISCLOSURE - “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 –” I) A CRIMINAL OFFENCE; II) A FAILURE TO COMPLY WITH ANY LEGAL OBLIGATION; III) A MISCARRIAGE OF JUSTICE; IV) DANGER TO THE HEALTH AND SAFETY OF ANY INDIVIDUAL; V) DAMAGE TO THE ENVIRONMENT; VI) THE DELIBERATE CONCEALMENT OF INFORMATION TENDING TO SHOW ANY OF THE MATTERS LISTED ABOVE. N.B. THESE CATEGORIES DO NOT COVER MISMANAGEMENT OR UNETHICAL CONDUCT AS SUCH. 3

4. WHAT IS IN THE PUBLIC INTEREST? CAN WORKERS OR THEIR ADVISERS BE CERTAIN THAT TRIBUNALS WILL AGREE WITH THEIR PERCEPTION OF THE PUBLIC INTEREST? IF PEOPLE ARE UNCERTAIN ABOUT WHETHER THEY WOULD BE PROTECTED, IS THERE A DANGER THAT SOME SIGNIFICANT WRONGDOING MAY NOT BE REPORTED? WILL THE PUBLIC INTEREST TEST BE SATISFIED WHENEVER A PERSON HAS A STATUTORY, CONTRACTUAL OR PROFESSIONAL DUTY TO DISCLOSE? SEE: NURSING AND MIDWIFERY COUNCIL CODE (see slide 22 below) WOULD THE DISCLOSURE OF ONE INCIDENT OF BULLYING BE IN THE PUBLIC INTEREST ? WOULD THE SITUATION BE DIFFERENT IF THERE WAS A CULTURE OF BULLYING AT THE WORKPLACE? 4

5. WHAT IS “A DISCLOSURE?” A “DISCLOSURE” IS NOT DEFINED FOR THESE PURPOSES BUT, ACCORDING TO KRAUS V PENNA PLC [2004] IRLR 260, IT COVERS BOTH ORAL AND WRITTEN COMMUNICATIONS. IN CAVENDISH MUNRO LTD V GEDULD [2010] IRLR 38 THE EAT DISTINGUISHED “INFORMATION” FROM AN “ALLEGATION”. IT RULED THAT THE ORDINARY MEANING OF GIVING “INFORMATION” IS CONVEYING FACTS AND A STATEMENT OF THE EMPLOYEE’S POSITION BY A SOLICITOR WOULD NOT FALL WITHIN SECTION 43B. EVEN IF SUCH A LETTER CONVEYED INFORMATION IT DID NOT AMOUNT TO A “DISCLOSURE”. 5

6. SHOULD “A DISCLOSURE” BE REQUIRED? FOR THE AVOIDANCE OF DOUBT, DEFINITIONS NEED TO BE INSERTED WHICH MAKE IT CLEAR THAT PART IVA COVERS THE MAKING OF ALLEGATIONS AND THE RAISING OF CONCERNS AS WELL AS THE REPORTING OF FACTS. [NOTE THAT ARTICLE 10 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ADOPTS A BROAD APPROACH TO FREEDOM OF EXPRESSION AND ALLOWS PEOPLE “TO HOLD OPINIONS AND TO RECEIVE AND IMPART INFORMATION AND IDEAS.”] 6

7. WHO IS COVERED BY THE LEGISLATION? SECTION 43K(1) ERA 1996: PROVIDES A BROAD DEFINITIONS OF “WORKER”. SHOULD RIGHTS AND PROTECTION BE AFFORDED TO OTHERS, FOR EXAMPLE, CONTRACTORS, VOLUNTEERS, PATIENTS OR MEMBERS OF THE PUBLIC? 7

8. PART IVA EMPLOYMENT RIGHTS ACT 1996 FAILURE TO COMPLY WITH A LEGAL OBLIGATION: PARKINS V SODEXHO LTD [2002] IRLR 109 DOES NOT NEED TO REVEAL WRONGDOING OR FAILURE BY THE WORKER’S EMPLOYER: HIBBINS V HESTERS WAY PROJECT [2009] IRLR 198 (SILBER, J) REASONABLE BELIEF: IN BABULA V WALTHAM FOREST COLLEGE [2007] IRLR 346 (C/A), LORD JUSTICE WALL AGREED THAT A BELIEF MAY BE REASONABLY HELD BUT WRONG. ACCORDING TO THE APPEAL COURT, THE WORD BELIEF IS SUBJECTIVE BUT THE REASONABLENESS OF IT IS TO BE DETERMINED OBJECTIVELY. 8

9. DISCLOSURE TO AN EMPLOYER SECTION 43C (1) ERA 1996: PROTECTS WORKERS WHO MAKE QUALIFYING DISCLOSURES TO THEIR EMPLOYER. SECTION 43C (2) ERA 1996: WORKERS ARE TO BE TREATED AS HAVING MADE DISCLOSURES TO THEIR EMPLOYER IF THEY FOLLOW A PROCEDURE WHICH THE EMPLOYER HAS AUTHORISED, EVEN IF THE DISCLOSURE IS ACTUALLY MADE TO SOMEONE ELSE. 9

10. DISCLOSURE TO A LEGAL ADVISER OR MINISTER SECTION 43D ERA 1996: WORKERS WHO SEEK LEGAL ADVICE ABOUT CONCERNS AND REVEAL TO THEIR ADVISER THE ISSUES ABOUT WHICH A DISCLOSURE MAY BE MADE ARE PROTECTED. SECTION 43E ERA 1996: WORKERS IN GOVERNMENT -APPOINTED ORGANISATIONS ARE PROTECTED IF THEY MAKE A DISCLOSURE TO A MINISTER OF THE CROWN 10

11. DISCLOSURE TO A PRESCRIBED PERSON SECTION 43F(1) ERA 1996: WORKERS WHO MAKE DISCLOSURES TO A PERSON (OR CLASS OF PERSONS) PRESCRIBED FOR THE PURPOSE BY THE SECRETARY OF STATE ARE PROTECTED. [ THE INDEPENDENT REGULATOR OF ALL HEALTH AND SOCIAL CARE SERVICES IN ENGLAND = WWW.CQC.ORG.UK] WWW.CQC.ORG.UK HOWEVER, THE WORKER MUST REASONABLY BELIEVE THAT: (I) THE MATTER FALLS WITHIN THE REMIT OF THE PRESCRIBED PERSON; & (II) THE INFORMATION AND ANY ALLEGATION CONTAINED IN IT ARE SUBSTANTIALLY TRUE. WHAT IS SUBSTANTIAL TRUTH? 11

12. DISCLOSURE IN OTHER CASES SECTION 43G ERA 1996: ENABLES WORKERS TO MAKE A PROTECTED DISCLOSURE IN OTHER LIMITED CIRCUMSTANCES. IN ORDER TO BE PROTECTED WORKERS MUST: I) REASONABLY BELIEVE THAT THE INFORMATION AND ANY ALLEGATION CONTAINED IN IT ARE SUBSTANTIALLY TRUE II) NOT ACT FOR PERSONAL GAIN. (SECTION 43L(2) ERA 1996: for these purposes a reward payable under any enactment will be disregarded). III) HAVE ALREADY DISCLOSED SUBSTANTIALLY THE SAME INFORMATION TO THE EMPLOYER OR TO A PERSON PRESCRIBED UNDER SECTION 43F ERA 1996, UNLESS THEY REASONABLY BELIEVE THAT THEY WOULD BE SUBJECT TO A DETRIMENT FOR DOING SO, OR THAT THE EMPLOYER WOULD CONCEAL OR DESTROY THE EVIDENCE IF ALERTED; AND IV) ACT REASONABLY. 12

13. DISCLOSURE IN OTHER CASES [continued] FOR THESE PURPOSES REGARD SHALL BE HAD, IN PARTICULAR, TO: (A) THE IDENTITY OF THE PERSON TO WHOM THE DISCLOSURE IS MADE (FOR EXAMPLE, DISCLOSURE TO AN MEMBER OF PARLIAMENT MAY BE REASONABLE BUT NOT TO THE MEDIA); (B) THE SERIOUSNESS OF THE MATTER; (C) WHETHER THERE IS A CONTINUING FAILURE OR ONE LIKELY TO RECUR; (D) WHETHER THE DISCLOSURE IS MADE IN BREACH OF A DUTY OF CONFIDENTIALITY OWED BY THE EMPLOYER TO ANOTHER PERSON; (E) ANY ACTION THE EMPLOYER (OR PRESCRIBED PERSON) HAS TAKEN OR MIGHT HAVE BEEN EXPECTED TO TAKE IN RELATION TO A PREVIOUS DISCLOSURE; (F) WHETHER THE WORKER HAS COMPLIED WITH ANY PROCEDURE AUTHORISED BY THE EMPLOYER FOR MAKING A DISCLOSURE. 13

14. DISCLOSURE OF EXCEPTIONALLY SERIOUS IMPROPRIETY SECTION 43H ERA 1996: EXCEPTIONALLY SERIOUS FAILURES. IN ORDER TO BE PROTECTED WORKERS MUST FULFIL THE FIRST THREE REQUIREMENTS OF SECTION 43G ERA 1996 (ABOVE). IN ADDITION, THE RELEVANT FAILURE MUST BE OF AN EXCEPTIONALLY SERIOUS NATURE AND IT MUST BE REASONABLE IN ALL THE CIRCUMSTANCES TO MAKE THE DISCLOSURE. THE IDENTITY OF THE RECIPIENT IS SPECIFICALLY MENTIONED. 14

15. RIGHT NOT TO SUFFER A DETRIMENT SECTION 47B(1) ERA 1996: “SUBJECTED TO ANY DETRIMENT...ON THE GROUND THAT THE WORKER HAS MADE A PROTECTED DISCLOSURE”. SEE : FECITT V NHS MANCHESTER [2012] IRLR 64 (C/A)– THIS SECTION WILL BE INFRINGED IF THE PROTECTED DISCLOSURE MATERIALLY INFLUENCES THE EMPLOYER’S TREATMENT OF THE WHISTLBLOWER. IN BOLTON SCHOOL V EVANS [2007] IRLR 140 (C/A) THE EAT PRESIDENT STATED THAT “IT SEEMS TO US THAT THE LAW PROTECTS THE DISCLOSURE OF WRONGDOING, OR ANTICIPATED WRONGDOING,...... IT DOES NOT PROTECT THE ACTIONS OF THE EMPLOYEE WHICH ARE DIRECTED TO ESTABLISHING OR CONFIRMING THE REASONABLENESS OF THAT BELIEF”. A CATCH 22 SITUATION? 15

16. PERSONAL AND VICARIOUS LIABILITY FOR DETRIMENT SECTION 47B (1A- (1E)) ERA 1996: IMPOSES PERSONAL LIABILITY ON CO- WORKERS ACTING IN THE COURSE OF THEIR EMPLOYMENT. ADDITIONALLY, AN EMPLOYER WILL BE VICARIOUSLY LIABLE IF A WORKER IS SUBJECTED TO A DETRIMENT BY A CO- WORKER FOR MAKING A PROTECTED DISCLOSURE AND THE EMPLOYER DID NOT TAKE ALL REASONABLE STEPS TO PREVENT THIS HAPPENING. 16

17. EXERCISING THE RIGHT NOT TO BE PENALISED SECTION 48(3) ERA 1996: TIME LIMIT AND THE MEANING OF “SERIES OF SIMILAR ACTS OR FAILURES”. ARTHUR V LONDON EASTERN RAILWAY LTD [2007] IRLR 58 (C/A) – A SERIES OF APPARENTLY UNCONNECTED ACTS COULD ALL BE FOUND TO HAVE BEEN DONE “ON THE GROUND THAT” A PROTECTED DISCLOSURE HAD BEEN MADE. 17

18. PART IVA EMPLOYMENT RIGHTS ACT 1996 SECTION 103A ERA 1996: ON BURDEN OF PROOF : KUZEL V ROCHE LTD [2008] IRLR 530 (C/A) – EMPLOYER TO PROVE WHAT THE REASON IS. HERE DISMISSAL UNFAIR BUT NOT AUTOMATICALLY SO. ON COMPENSATION AND INJURY TO FEELINGS: VIRGO FIDELIS SCHOOL V BOYLE [2004] IRLR 268, 18

19. THE RELEVANCE OF GOOD FAITH ? SECTION 123 (6A) ERA 1996: IF IT THINKS IT JUST AND EQUITABLE, AN EMPLOYMENT TRIBUNAL MAY REDUCE COMPENSATION BY UP TO 25% IF A DISCLOSURE IS NOT MADE IN GOOD FAITH. BY DEFINITION THE TRIBUNAL WILL HAVE FOUND THAT THE DISCLOSURE WAS IN THE PUBLIC INTEREST, SO HOW IS A WORKER’S MOTIVE RELEVANT? SHOULD GOOD FAITH BE PRESUMED UNLESS THE CONTRARY IS PROVED? 19

20. GAGGING CLAUSES AND CONTRACTING OUT SECTION 43J ERA 1996: NO CONTRACTING OUT 20

21. WHAT OTHER PRINCIPLES ARE APPROPRIATE? 21 1. SHOULD THERE BE A STATUTORY RIGHT TO RAISE CONCERNS WITHOUT FEAR OF RETALIATION? 2. IS A STATUTORY DUTY TO DISCLOSE WRONGDOING DESIRABLE OR FEASIBLE?

22. THE CONTRACTUAL AND PROFESSIONAL DUTIES OF NURSES. NHS TERMS AND CONDITIONS HANDBOOK SECTION 21 : ALL EMPLOYEES WORKING IN THE NHS HAVE A CONTRACTUAL RIGHT AND A DUTY TO RAISE GENUINE CONCERNS THEY HAVE WITH THEIR EMPLOYER ABOUT MALPRACTICE, PATIENT SAFETY, FINANCIAL IMPROPRIETY OR ANY OTHER SERIOUS RISKS THEY CONSIDER TO BE IN THE PUBLIC INTEREST. NMC “Raising and escalating concerns”: “ AS A NURSE OR MIDWIFE, YOU HAVE A PROFESSIONAL DUTY TO PUT THE INTERESTS OF THE PEOPLE IN YOUR CARE FIRST AND TO ACT TO PROTECT THEM IF YOU CONSIDER THEY MAY BE AT RISK”. [THIS GUIDANCE IS UNDERPINNED BY THE NMC CODE ENTITLED STANDARDS OF CONDUCT, PERFORMANCE AND ETHICS ETC] 22

23. WHAT OTHER PRINCIPLES ARE APPROPRIATE? [continued] 23 3. SHOULD ALL EMPLOYERS HAVE A STATUTORY DUTY TO ESTABLISH WHISTLEBLOWING /CONFIDENTIAL REPORTING PROCEDURES? NHS TERMS AND CONDITIONS HANDBOOK Section 21.2 : NHS organisations must have local policies that emphasise that it is safe and acceptable for staff to raise concerns and set out clear arrangements for doing so. 4. SHOULD WHISTLEBLOWERS HAVE A RIGHT TO DISCLOSE TO MP’S AND TRADE UNIONS AS “AUTHORISED RECIPIENTS”? [RCN WHISTLEBLOWING HOTLINE] 5. SHOULD RECIPIENTS OF CONCERNS BE OBLIGED TO FORMALLY RECORD THAT A DISCLOSURE WAS MADE AND HOW IT WAS HANDLED?

24. WHAT OTHER PRINCIPLES ARE APPROPRIATE? [continued] 24 6. SHOULD RECIPIENTS HAVE A DUTY TO ASSESS AND ACT ON A DISCLOSURE (WHERE APPROPRIATE) AND TO KEEP THE WHISTLEBLOWER INFORMED? 7. SHOULD AN AGENCY BE ESTABLISHED WITH RESPONSIBILITY FOR OVERSEEING THE LEGISLATION?

25. WHAT OTHER PRINCIPLES ARE APPROPRIATE? [continued] 25 8. SHOULD EMPLOYERS BE REQUIRED TO ASSESS THE RISK OF A WHISTLEBLOWER SUFFERING DETRIMENT AND TAKE REMEDIAL ACTION IF IT OCCURS? 9. SHOULD LEGISLATION INCLUDE FINANCIAL INCENTIVES FOR DISCLOSURE?

26. ALTERNATIVES TO LEGISLATION TO WHAT EXTENT ARE COLLECTIVE AGREEMENTS OR INDIVIDUAL CONTRACTS OF EMPLOYMENT DEALING WITH CONFIDENTIAL REPORTING/ WHISTLEBLOWING A REALISTIC ALTERNATIVE TO LEGISLATION? 26

27. CONCLUSION AT BEST LEGISLATION HAS BEEN A SOURCE OF REMEDY NOT PROTECTION. LAWS AND PROCEDURES WILL ONLY BE EFFECTIVE IF THEY ARE “PART OF A CONCERTED EFFORT TO CHANGE THE ENTIRE CULTURE OF THE ORGANISATION TO ONE OF OPENNESS, TRANSPARENCYAND CANDOUR IN WHICH EVERYONE FEELS ABLE TO RAISE CONCERNS FREELY SO THERE IS NO NEED TO WHISTBLOW” (Draft Patients First briefing. June 2013) 27