In the UK, certain regulators are recognised as ‘prescribed persons’ by the government, for example the Care Quality Commission and the Health and Safety Executive. Being a ‘prescribed person’ means that an organisation can be approached to receive and handle specific concerns, as listed online.

This matters for whistleblowers, as making a disclosure of information (i.e. blowing the whistle) to a prescribed person is an act which carries stronger legal protection than disclosing information to a body which is not ‘prescribed’.

The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, passed on 1 April 2017, imposed new rules: a duty on prescribed persons to publish annual reports on the whistleblowing disclosures they have received by 1 October each year.

Prescribed persons have a duty to report:

  • The number of disclosures received from whistleblowers
  • How many of these disclosures lead to a regulatory response/action
  • What action was taken, and the operational impact of this (e.g. if the information from the disclosure helped the prescribed person to perform it’s regulatory function)
  • A summary of the prescribed persons own functions and objectives

The Department for Business, Energy and Industrial Strategy (BEIS)

BEIS, who collate all the reports each January, have stated:

“The aim of this duty is to increase transparency … and to raise confidence among whistleblowers that their disclosures are taken seriously. Producing reports … will go some way to assure individuals who blow the whistle that action is taken in respect of their disclosures.”

However, BEIS also confirm:

“In collating these reports, BEIS has not assessed them for compliance with the duty. The legal obligation falls on the prescribed person to meet the annual reporting duty requirement.”

The Problem

The danger of introducing a duty and not even assessing compliance, far from enforcing it, is that this can bring the opposite of the desired effect – and reduce confidence in the regulatory system.

Our records show that almost three years on from the introduction of the regulations, almost a third of prescribed persons (32%) are not fully compliant with the reporting duty, and one in 20 have not published any of the information required by the duty. However, when prescribed persons do not comply with the duty to report, the government take no action for this breach of their duties; and it appears there are no plans to change this.

Without enforcement of the duty, how can confidence be built from the reports being published; how can a whistleblower be sure their concerns won’t be ignored, when over a third of all those prescribed don’t provide all the information that they are required to by law.

Protect are campaigning for a new law, which would enable whistleblowers to hold regulators to account if their concerns are ignored, or if their confidentiality is breached. Our new law would create a requirements for regulators to uphold set standards when it comes to handling and responding to whistleblowers. An oversight body, a Whistleblowing Commissioner, would be established, which would have powers to issue penalties if these standards are breached.

By Laura Fatah


Following the news that an employment tribunal has been lodged against Home Secretary Priti Patel under whistleblowing laws, Protect Chief Executive Liz Gardiner said the case showed how “whistleblowing laws can be used to hold even those in the highest office to account.”

She said: “Far too often we see managers and senior personnel disregarding codes of conduct, and bullying behaviour is too prevalent in today’s workplace. Ministers, as public office holders, have to adhere to the Nolan principles and their own ministerial code. This includes being accountable to the public for their decisions, and being scrutinised for that. We will watch this case with interest.”

Former Home Office permanent secretary Sir Philip Rutnam has said he was constructively dismissed from his role after accusing the home secretary of bullying behaviour.  Patel, who is  being investigated by the Cabinet Office over her behaviour, has denied claims  she bullied civil servants in three government departments.


The Covid-19 crisis has given rise to fast changing laws and regulations, and new loopholes and opportunities for fraud have emerged. Within a few weeks of the furlough scheme’s introduction, Protect has seen a rising trend in calls from whistleblowers concerned their employer is acting unlawfully.

Whistleblowers will be vital in policing this scheme to ensure that tax payers are not defrauded out of vital public funds.

Here is a summary of some of the cases (with changed names)  from the Advice Line:

Being asked to come back and work as a “volunteer”

The majority of the cases we have received to our Advice Line have focused on situations where workers have either been asked or told to go back to work even though they are part of the job retention scheme.

Craig works for a small company where all the staff have been furloughed. He and other staff have been asked to carry on working for the company as “volunteers”, so the work will be unpaid. Craig has raised this as part of a group of concerned colleagues, but his managers have responded to say that such arrangements are legitimate and that they took legal advice.

Some of our cases show whistleblowers being aware that their employer is breaching the rules across the company

We have also seen cases where whistleblowers have become aware of actions or plans to breach the Furlough rules that doesn’t involve themselves personally being affected.

Timothy works in the finance department of a small company.  During his work organising the company accounts he notices that he and 5 other members of staff (including a director) have been placed on furlough leave.  All the staff on the scheme are still working for the company.  Timothy raised his concerns with his line manager, the Finance Director. The response was to remove Timothy from the scheme, but the line manager refused to remove anyone else as he felt bodies such as HMRC would not have the resources to prosecute all those companies that breached the rules.

Dismissal, victimisation or threats when the concerns is raised

Worryingly, yet unsurprisingly we have seen whistleblowers threatened, victimised or dismissed once they have raised their concerns.

Some have been threatened with dismissal if they object to their employers plans:

Eloise is a senior manager working in financial services.  The Chief executive sent an email to all directors saying that staff will be furloughed (this is around 30 people) despite the fact that all staff are working from home and that as the staff work manly from sales commission which falls outside of the scheme. Eloise raised her concerns with the Chief Executive who threatened her with dismissal if she objected to the plan.

Other whistleblowers have been dismissed after voicing their concerns.

Mohammad was furloughed by his employer but was then asked to carry on working.  When Mohammad refused to work as it went against the Government guidelines his employer threatened him with dismissal.  A few days later Mohammad received a letter making him redundant as the company lacked the cash flow to pay his wages.

What a concerned worker can do if concerned:

Check the Government Guidance

Though the guidance has changed many times it is a good resource to look at what the Government have produced for workers, and what they expect from employers. This will give any concerned worker an idea of whether what the employer is doing breaches this or not.

Consider raising it first internally

Raising the concerns externally

If you do not feel that internal channels will be effective, or if you have already raised the concern internally, you can contact HMRC on their Fraud Reporting website via their online form.  You can also contact Protect for advice through our online form or by calling 020 3117 2520.


Advice to health workers thinking of using social media to raise concerns during the Covid-19 pandemic. 

Media reports of whistleblowers being gagged, dismissed or threatened with dismissal for speaking out publicly about issues in the global pandemic are worrying, and we at Protect have voiced these concerns in a statement saying how short sighted this approach is from employers.

A theme that has emerged in many of the reports is that whistleblowers have been dismissed, victimised or threatened by their managers after raising their concerns via social media.  A Tweet or a Facebook post about the lack of protective equipment or a lack of social distancing policies may bring the whistleblower into conflict with their employer.

Is a whistleblower legally protected if they use social media to raise concerns?

A whistleblower who is dismissed, forced out or victimised by managers or co-workers for using social media to raise concerns could be protected by the whistleblowing legislation the Public Interest Disclosure Act (PIDA). Getting this protection is not straight forward as the legal tests a whistleblower would need to fulfil are the most stringent in PIDA when compared to situations where someone has raised concerns with either their employer or a regulatory body.

Disclosures to an employer

Raising the concern with the employer is the easiest way to get protection, the whistleblower simply needs to show:

  • They had a reasonable belief the concerns show a health and safety risk to any individual, or a breach of a legal obligation (which may include health and safety law) or one of the other categories of concern set out in the legislation.
  • They had a reasonable belief that raising these concerns was in the public interest (which generally means that they had a wider impact – not just on the worker themselves).

In both cases a reasonable belief means the whistleblower could be wrong about the concerns, e.g. after investigation, the concern itself did not endanger someone’s health and safety, but they would still be protected under law.[1]

Disclosure to a regulator

PIDA protects disclosures made to either a regulator or law enforcement body (the Government maintain a list of such bodies that fall into this category called the Prescribed Person list). Here the whistleblower would need to show reasonable belief in the concerns they were raising but on top of this they would need to show they reasonably believed what they were raising was ‘substantially true’.[2]

 Disclosures via social media

PIDA applies the same legal tests for protection to a social media post as would be applied to making a disclosure to a journalist or an organisation that is not a prescribed regulator (e.g. raising concerns about a lack PPE to health campaign group).

The whistleblower now needs to show that the social media post was a reasonable thing to do, in addition to showing they had a reasonable belief in the concerns, and a reasonable belief the concerns were ‘substantially true’.[3]

The legal tests are no longer based on the belief of the whistleblower at the time, instead, this is an Employment Tribunal deciding whether the social media post was a reasonable thing to do. PIDA outlines some key things a whistleblower would need to show:

  • they tried and failed to get the concerns addressed by their employer or a regulator
  • they reasonably feared victimisation if they raised the concerns with the employer or the regulator
  • they feared a cover-up (e.g. destruction of evidence) if they reported the concerns to their employer or a regulator
  • there is no regulator prescribed under PIDA to report the concerns to
  • the concerns are of an exceptionally serious nature

The key point is that for social media posts to be protected by PIDA requires a whistlebower to demonstrate that the disclosure was reasonable by showing that either they couldn’t raise the concerns else where or that they had tried, and this failed to get the concerns addressed.

In the immediate crisis, the Employment Tribunal may consider a whistleblower approaching the press as more reasonable than indiscriminate use of social media. Responsible journalists will be used to balancing the dual public interest of reporting on the crisis’ while avoiding spreading panic.  That said, there is case law that demonstrates what the Tribunal would consider  a concern “exceptionally serious in nature” that would warrant a disclosure to the media without approaching their employer or regulator first.  The case of National Trust vs Collins showed that Collins was justified in leaking a report detailing a chemical spill on a beach because the National Trust and the local council were too busy with a dispute over who was responsible for the clear up. During this time the public still had access to the beach, which posed a danger.

While PIDA doesn’t require a whistleblower to raise their concerns with their employer or a regulator first, it does require the whistleblower to have a compelling reason why they’ve gone down this path.

Is there a better place to raise the concerns?

The key question before using social media to raise any concerns is to ask yourself whether there’s a better place to approach first. Here’s an overview of those options:

Your employer

As well as having an easier path to protection under PIDA, a disclosure to the employer may get a quicker response to most concerns as they will be able to act on the concerns faster than a regulator, the media or a social media post.

Some options in the health service include:

  • As a first port of call speak with your line manager or supervisor
  • If you’ve tried to raise the concerns with your line manager or supervisor and they’ve been ignored, or for whatever reason you cannot raise it with your line manager or supervisor:
  • There are FTSUG (Freedom to Speak Up Guardian) if you work in England in certain NHS institutions.
  • With named contacts in your organisation’s Whistleblowing or Speak Up policy (see Protect’s webpage for information on raising concerns with your employer).  These can include directors, compliance personnel and board members.
  • Senior managers, directors, board members etc. who you trust or feel would listen to your concerns.

Raising the concerns internally first will not prevent a whistleblower from raising the concerns externally, whether that is a regulator, journalist or a social media post.

Regulators in the health service

If you do not feel that internal channels will be effective, or if you have already raised the concern internally, your next step may be to contact a regulator. Approaching a regulator with the concern comes with better protection and can still put pressure on an employer who has failed to take the concerns seriously.  When considering approaching a regulator look at our webpage on raising concerns with a regulator.

These are the regulators for the health service:

For concerns about Personal Protective Equipment (PPE) the following bodies, though not a prescribed body, could be a good place to approach with concerns before contacting a journalist or using social media.  They include:

Contacting a journalist

Approaching a journalist may well be a better option than using social media to raise concerns even if they both come with the same stringent legal tests.  This is due to how a journalist can shield a whistleblower’s identity through protection of sources and use a whistleblower’s concerns alongside other material, such as disclosures from other whistleblowers to publish a story about the situation.

If you are considering contacting a journalist or raising your concerns in a social media post either contact us at Protect on 020 3117 2520 or send us an email through our contact  online form.  You can also get advice from your trade union.

By Andrew Pepper-Parsons

[1]S.c. 43B (1) (a)-(f) of the Employment Rights Act.

[2] S.c. 43F (1) b (ii) of the Employment Rights Act.

[3] 43G (b) and (d) the Employment Rights Act 1996


Protect is reassuring NHS workers it is just a phone call away.

Protect Chief Executive Liz Gardiner said, “Whistleblowing is the best early-warning system in the NHS and now more than ever staff need to feel safe and supported when they speak up and that issues are properly investigated and resolved.

“We want NHS workers who are working under extremely difficult circumstances to feel reassured that they can get independent and confidential advice about whistleblowing by calling Protect.”

Protect handles around 3,000 cases each year through its free, confidential Advice Line. In addition, it trains businesses and organisations on best practice speak up arrangements.

If an NHS worker has a whistleblowing concern, NHS staff can raise the matter internally at the Trust, speak to their Freedom to Speak Up Guardian (England only), or call the NHS Whistleblowing Advice Line SpeakUp for signposting information. For NHS workers in Scotland, they can call the Alert and Advice Line. For strategic advice on how and where they can raise their concerns further, in addition to legal advice as to what their rights are in doing so, they can call the Protect Advice Line.

However, charity Protect says it has been approached by some NHS staff with concerns.

“Some NHS staff have told us they do not feel safe speaking up within their Trust and are not aware of what support channels exist. Our service at Protect is unique – we offer advice on how to raise concerns effectively, as well as explaining whistleblowers’ legal rights” said Protect’s Chief Executive Liz Gardiner.

Dr Jenny Vaughan, Learn Not Blame Lead, at Doctors Association UK, said, “Sadly the Doctors’ Association UK has been approached by many doctors who have been disciplined for raising concerns about lack of personal protective equipment (PPE) and been told not to speak to the press. Patient safety is never best served by driving staff concerns underground. Bullying of staff when they speak out about safety is completely unacceptable.”

She added, “Doctors and nurses on the frontline have a right to speak out if they or their families or patients could be at risk. Our health service, both private and public, will only benefit if we learn from each other’s experience and we have a Learn Not Blame culture.”

Protect has the support of a number of lawyers who have agreed to give further support to health and social care workers during the crisis.

Protect Chief Executive Liz Gardiner added, “We hope that employers will listen-up when concerns are raised – but we’re grateful to the many lawyers in our legal support network who have kindly agreed to help, including barristers Daniel Stilitz QC, Mukhtiar Singh, and Joseph England and solicitors Paul Daniels at Keystone Law, Leigh Day Solicitors and Slater & Gordon lawyers – but please call Protect in the first instance”.

If further law firms or Chambers wished to lend their support and advice during the Covid 19 crisis, Protect are co-ordinating whistleblowing support to key workers should it be needed.

Doctor Katie Sanderson, who works in acute medicine, said “Healthcare workers are practising in very challenging conditions. It is crucial that everybody working in the NHS feels able to voice concerns openly, and that they are aware of the appropriate channels to do so. It is important that doctors and others are aware that free, high quality legal advice is available if they need it.”

 

Protect
Protect Advice Line – Tel: 020 3117 2520
Email whistle@protect-advice.org.uk

SpeakUp
NHS Whistleblowing Advice Line SpeakUp: 08000 724 725. 

Alert & Advice Line – NHS Scotland
Tel: 0800 0086112
Email: alertline@protect-advice.org.uk

 


Protect has put its name to an international civil society letter:

The signatories to this letter call on all public authorities and institutions to protect those who report or expose the harms, abuses and serious wrongdoing that arise during this period of crisis caused by the COVID-19 pandemic. We also encourage all citizens and workers to participate in ensuring our governments, corporate institutions and markets remain accountable, and in defending the human rights and freedoms of all people.

The COVID-19 pandemic brings into stark relief the importance of accountability and the need for regular and reliable information from our public institutions and our leaders. The people of every affected country need to know the truth about the spread of the disease both locally and internationally in order to respond effectively and help protect their communities. Fairness, transparency and cooperation are vital and never more so than during a pandemic.

We have already seen examples of wrongdoing and mismanagement in our public institutions, commercial markets and business as a result of COVID-19. Emerging areas of concern include health system capacity and delivery, public procurement, violations of health and safety and labour law, inequitable and ill-prepared global supply chains, unfair competition practices and market abuses, and significant violations of personal privacy rights at scale through the digital tracking of individuals.

Proper notification of risk to the public and to workers, fair and responsible conduct by all institutions, and transparent data collection are all critical to public confidence in our ability to overcome this crisis. This is even more important when the protections normally provided by the fundamental democratic pillars of our societies are curtailed or side-stepped. Parliaments and democratic assemblies are being suspended in many countries. The use of extraordinary powers by governments without proper public oversight and transparency creates a tangible risk of overreach and potential misuse.

When decisions are taken in emergency conditions, often away from democratic scrutiny, whistleblowers can play a vital early warning role. They are the corrective fail-safe mechanism in any society, especially in an international health crisis when the public’s right to know can have life-or-death implications. In this time of crisis and beyond, we encourage citizens and workers to participate in ensuring that proper accountability is maintained in our governments, corporate institutions and markets, and in defending the human rights and freedoms of all people.

During this pandemic we have already witnessed abuses. At various times, the fundamental rights of freedom of expression and access to information have been restricted. The cost of these actions is most severely borne by the most vulnerable members of our communities: the elderly, the poor, immigrants and refugees, LGBTQ communities, prisoners, the multitudes of precarious workers as well as frontline workers in the crisis.

Whistleblowing has proven to be a powerful tool to fight and prevent actions that undermine the public interest. Our organisations call on all public authorities and corporate institutions to protect those who expose harms, abuses and serious wrongdoing during the COVID-19 crisis, and beyond. Workers are taking risks daily to maintain the many essential services which we rely upon, especially in these times, our health services, care for elderly care and other social and public services, as well as food supply and logistics, just to name a few. The importance of these workers, their right to a safe working environment and to speak up about threats to public health and safety, corruption, and other abuses must be recognised and protected. Their disclosures, as well as those from all citizens, are vital to preventing major disasters and reducing the impacts of the crisis on us all, especially on the most vulnerable members of society and our democratic systems.

 

Access Info / ACREC / African Centre for Media & Information Literacy / APW-Fíltrala / Archiveros Españoles en la Función Pública / Article 19 / Atlatszo / Blueprint for Free Speech / Centre for Free Expression, Ryerson University / Center for Independent Journalism Romania / CFDT Cadres / Cibervoluntarios / CREW – Greenwich University / Daphne Caruana Galizia Foundation / Prof. David Lewis, Whistleblowing Research Unit, Middlesex University / ePanstwo Foundation / EPSU – European Public Service Union / Eurocadres – Council of European Professional and Managerial Staff / ETUC – European Trade Union Confederation / European Centre for Press and Media Freedom / European Federation of Journalists / European Organisation of Military Associations and Trade Unions   Fundación Ciudadanía Inteligente / Fundación Internacional Baltasar Garzón (FIBGAR) / Funky Citizens / Government Accountability Project / Prof. AJ Brown, Griffith University / Hermes Center for Transparency and Digital Human Rights / International Bar Association / Legal Legion Loyalty / Maison des Lanceurs D’Alerte / Media Development Center / Oživení / Pistaljka / Protect / Proyecto sobre Organización, Desarrollo, Educación e Investigación (PODER) / Reporters United / Stefan Batory Foundation / The Disruption Lab / The Ethicos Group / The good lobby / The Signals Network / Tom Mueller / Transparency International / Transparency International Australia / Transparency international Estonia / Transparency International Greece / Transparency International Ireland / Transparency International Italy / Transparency International Slovensko / Dr Vigjilenca Abazi, Maastricht University / Vouliwatch / WIN Whistleblowing International Network / Whistleblower-Network Germany / X-net

 

 


Protect Chief Executive Liz Gardiner said, “COVID-19 has drastically changed the way in which we work but whistleblowing and speak up remains vital if we are to keep patients, customers and colleagues safe. Our Advice Line has been receiving Covid 19 calls and we know some NHS staff are feeling unsupported by management over public interest concerns they have. The report,  in The Independent today that NHS staff are being “gagged” and warned not to speak about their concerns is a troubling state of affairs. While we understand the need to control media communications as part of national emergency incident planning, gagging or restraining staff from raising their concerns on public interest matters is short sighted.

Whistleblowing is the best early-warning system in the NHS and now more than ever organisations should ensure that staff feel safe and supported when they speak up and that issues are properly investigated and resolved. NHS staff are putting themselves in difficult and dangerous situations to save lives, and the long term future and resilience of the NHS depends on ongoing trust between staff and managers. We urge all NHS Chief Executives, Boards and senior management to listen to concerns raised by staff.”


Whistleblowing is raising public interest concerns relating to wrongdoing, malpractice or risk in the workplace. This could be fraud in a bank, food hygiene concerns, or issues relating to patient safety. And whilst whistleblowing concerns are not limited to widescale wrongdoing, recent scandals in the media such as the NHS Shrewsbury maternity scandal and NHS West Suffolk hospital (where staff were subject to fingerprinting to help identify a whistleblower) have highlighted serious patient safety concerns, as well as the hospital’s negative handling of whistleblowers. Concerns also tend to be in the public interest if the wrongdoing affects other people and their interests – not the whistleblower alone.Whilst the term ‘whistleblowing’ is not defined legally, the Public Interest Disclosure Act 1998 (“PIDA”) – which talks in terms of ‘protected disclosures’ – comes closest….Read the Impress blog in full

Blog by Protect Adviser Burcak Dikmen

We are delighted our Government lobbying has paid off with an amendment to Section 105 of the Utilities Act 2000. This Section was introduced to protect national security interests and commercial secrets but lacked any protection for whistleblowers in the regulated energy sector from speaking out about wrongdoing – and if they did – they could have faced fines or jail for up to two years. The new Government amendments now allow whistleblowers to raise concerns and be protected by the Public Interest Disclosure Act 1998 (PIDA). In addition, they will not face prosecution by pursuing a legal claim at an employment tribunal.

Protect Chief Executive Liz Gardiner said, “We’re pleased that this overly-restrictive law has been amended so that whistleblowers can speak up without fearing of committing an offence. This is a step forward for whistleblowing in the energy sector, but the Government needs to review similar restrictions on whistleblowers still present in numerous other acts”.


COVID-19 has drastically changed the way in which we work. Government guidance has led to the temporary closure of a number of businesses while others have been tasked with finding quick and effective ways to ensure that staff are able to work from home where possible and that business can continue as usual.

For organisations employing key workers, there is now a heightened need for services to be delivered safely. We know from our Advice Line that this time of public emergency is giving rise to new concerns about keeping patients, customers and colleagues safe.  Staff need to feel supported, valued, and looked after.

The way in which we work may have changed, but the need for workers to be able to raise concerns when things go wrong has not. Whistleblowing is an organisation’s best early-warning system and now more than ever organisations should ensure that staff feel safe and supported when they speak up and that issues are properly investigated and resolved.

Organisations should consider the following steps to ensure that staff can blow the whistle properly:

  1. Building a positive speak up culture: While homeworking (for those able to work remotely) may present physical barriers to staff raising concerns you need to make sure that these do not prevent staff from raising concerns. Employers who have staff working from home should make sure that managers regularly touch base with staff and encourage them to raise any concerns that they have and make sure that managers are equally accessible to staff during working hours (via phone, email or video). Encourage your senior leaders to lead by example and drive this cultural shift by championing a good speak up culture.

 

  1. Update your whistleblowing policy: Now is a perfect time to review and update your whistleblowing policy to make sure that it complies with legal, regulatory and industrial developments. Make sure you provide a number of clear channels for staff to raise their concerns (including the names and contact details of key contacts) and ensure that your policy is in plain English and easily accessible online.

 

  1. Test staff attitudes to whistleblowing: Organisations should make sure that they proactively engage with staff and ensure staff are aware of how and where to blow the whistle. Staff need to have trust and confidence in their organisation’s ability to handle their concerns. Why not take the time to test your organisation’s culture through online staff surveys, focus groups or listening exercises – all of which can be delivered remotely.

 

  1. Train your staff : While training staff face-to-face may be difficult, e-learning and video conferencing make it possible to train staff even when they’re working remotely. Make sure that all staff across your organisation understand what whistleblowing is; how and where to raise and escalate concerns, the difference between whistleblowing and grievances and where they can get independent advice as a whistleblower. Make sure that managers listed within your whistleblowing policy are trained on their role and responsibilities. You may want to develop FAQs for managers which explains how they should handle the confidentiality and victimisation of whistleblower.

 

These are difficult and uncertain times, and a strong message that you value your staff and are listening to their concerns will help to protect you, your staff and the general public.

 

Written by Hari Raithatha, a Senior Adviser on our Advice Line. Hari works closely with Protect’s Training and Consultancy team to help organisations meet whistleblowing best practice. He has qualified as a solicitor with Protect in 2020.