Protect, has today (March 19)  announced the appointment of Liz Gardiner as its new Chief Executive.

Liz, who joined Protect as Legal Officer in July 2018, has been Acting Chief Executive at the charity since December last year when Francesca West stood down.

Liz said, “I am delighted and honoured to be working for such a great charity with such talented and committed staff. I am looking forward to acting as an ambassador for Protect and building on our work, to change whistleblowing culture for good across workplaces. I am passionate about Protect’s work and the impact we can have in encouraging speaking up to stop harm.”

Before joining Protect, Liz, who is a qualified employment solicitor, worked at charity Working Families on their legal helpline, advising parents and carers about discrimination and flexible working issues. Liz also has strong public affairs and communication skills; she has worked in both Houses of Parliament and as Parliamentary Officer for Working Families and the Royal College of Nursing.

Protect Chair, Paul Boyle said, “Firstly on behalf of the Board, I would like to thank Francesca for all her hard work and we all wish her well. The Board is delighted to appoint Liz who stood out head and shoulders amongst many applicants. She has impressed the Board and staff with her positivity, enthusiasm and ambition for the charity. I’d like to congratulate Liz on behalf of the Board on her appointment and offer any support if needed over the next few months, which will undoubtedly be challenging for CE’s up and down the country. The work of Protect is as vital as ever, if not more so.”


As part of a series of sector specific round tables, Protect, together with hosts Mayer Brown, brought together whistleblowing specialists from insurance firms large and small earlier this month.

The seminar, introduced by Pete Chapman of Baker Mackenzie and Chris Chapman of Mayer Brown, set out why whistleblowing matters to insurance firms.  Firms need to consider the extension of the Financial Conduct Authority and the Prudential Regulation Authority rules to the insurance sector, as well as the increase in regulators’ emphasis on non-financial misconduct in the post #Metoo era, and how they focus on diversity – and how effective whistleblowing can play a part in each area. Chris reminded the audience that the best way to avoid the FCA finding out first about a problem, is to make sure your internal whistleblowing arrangements are effective.

The panel posed questions to the room – how would you know if your arrangements were working well?

Mike Carpenter’s (former Legal and General Group Financial Crime Risk Director, and now a consultant) outlined the “Ps” that those responsible for whistleblowing should consider:  philosophy, principles, policies, procedures, people, and  performance.  He encouraged attendees to measure the success of their whistleblowing arrangements with diagnostic tools – is a viewpoint supported by Jon Cunningham of Protect who offered the solution of the charity’s 360⁰ Benchmark in measuring operations, governance and staff engagement.

Protect Chair and ex-Aviva Chief Internal Auditor Paul Boyle OBE asked if the insurance sector has a greater level of responsibility to ensure that individuals with concerns of public interest are encouraged to speak up?   Crucially, is it in insurers’ best interests to actively promote whistleblowing to their customers to reduce risks?  The majority of delegates agreed.  Both underwriters and brokers should be looking at the effectiveness of whistleblowing arrangements when assessing the risks of their customers –  not just to reduce the need for large payouts to firms and individuals when malpractice has taken place, but  – in the public interest – to avoid harm.

Finally delegates discussed the importance of trust in whistleblowing arrangements, and the need for senior buy-in if cultures are going to change.  More could be done by associations and markets to issue best practice guidance:  everyone should be involved in getting the message across.

 

By Business Support Manager Stella Sutcliffe


The launch of two backbench bills this year has kick started a Parliamentary debate about whether there should be a regulator, commissioner or ombudsman overseeing whistleblowing.

In February, Dr Phillipa Whitford, MP for Central Ayrshire, launched her Public Interest Disclosure (Protection) Bill in the House of Commons, and Baroness Kramer launched her Office of the Whistleblower Bill in the House of Lords the week before at the end of January.

Both bills address the lack of a streamlined approach in setting standards for whistleblowing arrangements among employers and regulators. This includes how whistleblowing investigations should be conducted, and what happens if the employer or regulator fails to investigate the concern or mistreats the whistleblower. Whilst an individual can seek legal redress through the employment tribunals by enforcing their rights under the Public Interest Disclosure Act 1998 (PIDA), this continues to overlook vital issues such as the actual concerns raised by the whistleblower, as well as the inconsistent and inadequate approach to whistleblowing practices from both employers and regulators.

An enforcement body overseeing whistleblowing malpractice would help with the disparity between regulators and their investigatory remit regarding whistleblowing concerns.

There are over 90 ‘prescribed persons’ UK (regulators) as well as non-prescribed regulators  whistleblowers can raise their concerns to externally. Currently, only some regulators such as the financial services and health sectors have robust whistleblowing frameworks, which remains to be followed by regulators in other sectors. The Financial Conduct Authority (FCA) has a more expansive view of whistleblowing and their ‘reportable concerns’ include a wider remit that includes how the individual in question has been treated by their employer for whistleblowing. Similarly, in the health sector, the National Guardian’s Office (NGO) also concerns itself with the treatment of whistleblowers, which addresses the cultural elements related to whistleblowing in the workplace. Unfortunately, the individual aspect of whistleblowing is not dealt with by regulators who deal only with the concern itself.

We at Protect have also addressed these issues in our Draft Whistleblowing Bill which we launched in Autumn 2019 which proposes the introduction of a Whistleblowing Commissioner. We believe a Whistleblowing Commissioner – The Commissioner – will set standards for employers and regulators, investigate mishandled concerns, where a whistleblower has been mistreated, improve public awareness on the benefits of whistleblowing and its legal protections, and impose fines on employers or regulators for breaches of these standards. The Commissioner will bridge  barriers that currently exist in practice – by closing the gap between what can be raised/investigated, and issuing an annual  public report into how standards set by the Commission have been breached.

The Commissioner would also open-up tighter regulatory control in sectors that currently have little to no oversight.  It would also act as a conduit to those sectors that have a complex regulatory regime or a cover a wide remit, like the education sector.

Having in place a whistleblowing Commissioner will  provide a consistent application of whistleblowing practices but more importantly, it will provide another regulatory layer for whistleblowers to raise their concerns to and ensure compliance by employers and regulators  and hold them to account.

We look forward to working with politicians, policy makers and campaigners to develop the idea of a central regulatory body  for whistleblowing and the reform of the Public Interest Disclosure Act (PIDA)

By Legal Adviser Burcak Dikmen


Gagging clauses have become quite the talking point thanks partly due to the Harvey Weinstein scandal and the #MeToo era and countless other news stories exposing their misuse. Controversial debate around the use of gagging clauses, or NDAs (non-disclosure agreements) and financial settlements to conceal sexual assault and harassment has tarnished the image of NDAs and highlighted their harmful impact of encouraging a culture of silence in cases of serious misconduct.

NDAs, sometimes referred to as confidentiality clauses or “gagging clauses” are written into a contract to stop information being disclosed. They serve a useful and legitimate role in employment contracts and settlement agreements. They protect commercially sensitive information and prevent employees sharing this information with their competitors.

However, there is increasing evidence these gagging clauses are being used unethically by some employers to intimidate whistleblowers, silence victims of harassment and discrimination, and conceal wrongdoing in the workplace.

But there are limitations to what can legally be ‘gagged’ by NDAs, which workers are often unaware of.

The current law on whistleblowing states any agreement which prevents a worker from whistleblowing, or making a protected disclosure is void ( s43J Public Interest Disclosure Act, PIDA, 1998,) but s43J has been hotly debated. NDA wording is often vague and contains no clear guidance as to how confidentiality clauses should be used and to what extent they should highlight the worker’s rights.

Protect has long been calling for NDA reform. A key ask in our Draft Whistleblowing Bill to reform PIDA is NDA reform. We want to see stronger and clearer wording to prevent the use of gagging clauses and a guarantee whistleblowers faced with a settlement agreement will get legal advice on any non-disclosure clauses.

A  Government Consultation March-April 2019 by BEIS  (Department for Business, Energy & Industrial Strategy) concluded clauses being used to silence and intimidate victims of harassment and discrimination cannot be tolerated. Almost half (48%) of respondents had seen an example of a confidentiality clause that attempted to cloud a worker’s right to make a protected disclosure or overstretch the extent to which the information is confidential. The Consultation stated that it is important that workers understand their rights when they sign a confidentiality clause so they are not misled that they cannot disclose certain information. 83% of respondents agreed that confidentiality clauses should clearly highlight the disclosures that are not prohibited.

Protect suggested the following reforms to the law:

 

  • an exclusion in any NDA allowing for the disclosure of information about workplace harassment or discrimination to a regulator – not just the police – so wrongdoing that falls short of criminal conduct can be investigated and individuals held to account
  • improved advice for all employees: there is a very low awareness of employment rights around whistleblowing, as well as discrimination and harassment, and obscure wording around settlement agreements does not aid understanding• a standard document to be handed to all employees who sign a settlement agreement, explaining the limits of all confidentiality clauses in non-legalistic language

In our Draft Bill we address the lack of clarity of gagging clauses in settlement agreements by proposing clearer wording for s43J:

‘No agreement made before, during or after employment between an individual and an employer may preclude that individual from making a protected disclosure.’

Additional to this clearer wording is that any settlement agreement involving whistleblowing will have a clear statement saying that nothing in the agreement can stop the individual escalating the concerns, and certificate from an independent legal advisor explaining the requirements and limitations of the confidentiality clause.

We believe these provisions will make a whistleblower’s rights and responsibilities under a settlement agreement much clearer.

 

Blog written by Rhiannon Plimmer-Craig


Academics, journalists, whistleblowers, advocates and members of the public gathered at The Shard for an event hosted by Warwick Business School recently to discuss the hurdles they faced in their own journeys and recent trends in whistleblowing.

Protect’s Policy Officer, Laura Fatah, attended the event arranged by academics Marianna Fotaki and Iain Munro (www.whistleblowingimpact.com) with special guest Katharine Gun. Katharine was a translator based at British intelligence agency, GCHQ, who raised concerns in 2003 over a US plot to spy on the United Nations diplomats to ‘give the Americans an edge’ in their attempts to persuade the Council to go to war with Iraq.

Katharine Gun & Official Secrets

Gun knew this wasn’t right on three counts: GCHQ was being used for political means; the aim was to achieve war, and the diplomatic processes of the UN were being corrupted. She had also privately conducted her own research; and found “no reasonable reason” for the planned invasion. However – she was bound by the Official Secrets Act.

A lack of internal options lead Gun to conclude she had no option but to go against all her training and contact the media. Her whistleblowing has been made into the recent film ‘Official Secrets’.

Although the two states of the UK and the US eventually did go to war – they did so without approval of the UN, and amid international disapproval. Katharine Gun will be remembered for revealing to the world the underhand tactics of the US and UK.

Public Interest

The ‘public interest’ and who decides what this is was a key discussion point throughout the event at the Shard. Gun noted that the public interest defence, as used by the jury to successfully dismiss the case against Clive Ponting (who blew the whistle on the sinking of the Belgrano during the Falklands War), is no longer part of the Official Secrets Act. The public jury in that case clearly wanted to respect the societal value of the information that Ponting revealed, despite its confidential nature.

Modern Warfare

Mark Curtis, Editor of Declassified UK, spoke about the continued use of covert and potentially unlawful tactics the UK state still employs. He referred to cases when the UK is seen supporting the military operations of countries who have been found to be in breach of international law, such as the continued Saudi Arabian military assault of Yemen, the Israeli government’s illegal occupation of Palestinian land, and the US drone programme in Syria, Pakistan, and Afghanistan. Curtis highlights the particular difficulty whistleblowers face when raising concerns about the actions of their own government, as opposed to the vast majority of whistleblowers who raise concerns about malpractice or wrong doing in non-governmental institutions.

Trends in Whistleblowing 

Academic Iain Munro gave a brilliant summary of his recent work exploring trends in whistleblowing, and how the modern whistleblower is often supported by a network – without which they could not be effective. Members of the network include lawyers, journalists, confidants, advocates and translators. The use of technology was also discussed, and how best this can be used to securely share source material; technology has enabled the open source sharing of data with journalists and members of the global public. There is room for a genuine debate over the role of redaction in various forms of networked whistleblowing, but there is little doubt that it has played a huge role in stimulating public debate over issues including the legitimacy of recent wars, the 2008 financial crisis, offshore tax evasion and global mass surveillance.

Dave Lewis, of Middlesex University, explored the idea of pro-active protection for whistleblowers, including a protected status parallel to that of pregnant women in employment. However, this would naturally require the sacrifice of confidentiality. Ian Foxley spoke of his own ordeal, which is still on going, and how whistleblowers might learn ‘survival techniques’ from other human rights defenders. There was agreement that whistleblowers are faced with an overwhelming psychological toll and often need support.

It was a fascinating event with many interesting points put across by both whistleblowers and academics. Protect look forward to discussing the issues raised and our campaign for a new law for whistleblowing with all the delegates.

Resources:

 

By Laura Fatah


Protect is hosting a round table breakfast for the insurance sector at law firm Mayer Brown with Mike Carpenter (former Group Financial Crime Risk Director at Legal and General), Paul Boyle OBE (Chairman of Protect), and Chris Chapman (Compliance Partner at Mayer Brown).

Together, they will be discussing a number of topics around speak-up cultures, including the vital question of how to measure your programme’s effectiveness.

We would be delighted if you could attend and contribute your professional insight. Specific topics will include:

  • Measuring the effectiveness of whistleblowing
  • How to foster a positive speak-up culture
  • What the biggest challenges are to developing a whistleblowing programme
  • How to equip and train managers

If you are interested in attending this free round table,which takes place on March 4 between 830am-945.am at Mayer Brown’s Liverpool Street offices, please email Stella Sutcliffe, at stella@protect-advice.org.uk or call 20203 117 2520


Today we have launched a joint petition with WhistleblowersUK calling on the Government to review the law: It’s time for the UK to return to its place, leading global standards on whistleblowing.
Protect, along with WhistleblowersUK, and the public, call on this Government to deliver a whistleblowing law that offers real protection to whistleblowers, sets obligatory standards for employers and regulators to adhere to, and provides stronger enforcement when things go wrong. We support the APPG (All Party Parliamentary Group) for Whistleblowing and others in calling for an urgent review of the whistleblowing law, the Public Interest Disclosure Act (PIDA).
Protect’s Acting Chief Executive, Liz Gardiner, said, “Everyone who cares about reforming PIDA should sign this petition – the more support and voices we have calling for change, the better.”

Add your name to the petition below to tell the Government that whistleblowers deserve better:
http://chng.it/jxtHjCgHyC

Find out more about our campaign here: https://protect-advice.org.uk/protect-to-campaign-for-a-new-whistleblowing-law/


Financial service workers who have blown the whistle on workplace wrongdoing will be the focus of  new research by Protect and law firm Slater and Gordon. The research is to find out whether the FCA’s rules on whistleblowing have made a difference to whistleblowers’ experiences.

Head of Policy at Protect, Andrew Pepper-Parsons will work with Slater and Gordon to anonymously analyse 438 whistleblowing cases from financial service sector employees who called Protect’s advice line between 2017-19”.

The research, Silence in the City 2, updates the previous report, Silence in the City published with Slater and Gordon in 2013, which looked into records of over 300 workers from the financial services sector who called our Advice Line between 2007 -2012. A key finding of this study found workers’ lack of trust in their superiors may be well-founded: with 42% reported being dismissed after raising a concern once. This compared to 24% from across all industries.

Protect Head of Policy, Andrew Pepper-Parsons said, “With new FCA rules introduced in September 2016, we  want to see whether the efforts from the regulators has had a positive effect for whistleblowers. Do they trust internal mechanisms more?  Are their concerns now taken more seriously?  Has there been a robust response from firms around reports of victimisation?

He added, “Silence in the City 2 will allow us to compare – before and after – the implementation of FCA’s rules.  While employers tell us the culture has changed, we want to get the viewpoint from the whistleblowers in the sector.”

The landscape has changed considerably since 2012, with the regulators for the financial services, the Financial Conduct Authority (FCA) and the Prudential Regulatory Authority (PRA), issuing whistleblowing rules for banks and, more recently to insurance companies on creating and then running whistleblowing arrangements.  These measures include the following aspects:

  • Written whistleblowing procedures, with an ability for staff to report directly to the FCA or PRA
  • Emended approach to preventing victimisation in the whistleblowing arrangements
  • The appointment of a whistleblowing champion

In 2018 the FCA carried out research looking at the implementation of their rules, where they found many firms had embedded training and whistleblowing policies but many struggled to demonstrate that in practice they were taking proactive action.

Clive Howard, senior principal employment lawyer at Slater and Gordon, who will be overseeing the project, said: “The original ‘Silence in the City’ report made for very bleak reading, with little support for the majority of whistleblowers in financial services who were at best ignored and at worst, victimised, disciplined or dismissed.

“There has been much positive change in the last seven years, but we know from our clients that problems do still exist. This updated report will be an important insight into what has changed for the better, what still needs to be done and hopefully a valuable learning tool to ensure those who are brave enough to raise concerns in such a sensitive and important sector as financial services are better protected in the future”.

Silence in the City 2 will be published in March.


 

Protect and law firm Howard Kennedy joined forces for a successful secondment, offering a three-month secondment to Protect’s trainee solicitor, Hari Raithatha, and Howard Kennedy’s trainee solicitor, Diarra Brown. So, how did they get on, and what did they both learn?

Qu: What did you do, and what did you learn?

Hari: Being at Howard Kennedy gave me a real insight into how employment law issues impact organisations on a daily basis. While working in the employment team I worked on a real mix of issues including advising on the employment issues in the acquisition of company and also advising on a disability discrimination matter as part of the firms Pro Bono program.

Diarra: To be proactive and to put yourself forward this is very much appreciated especially in an organisation like Protect. Taking the time to listen and show empathy can drastically improve someone’s outlook.


Qu: Was it what you expected, did anything surprise you?

Hari: I was really surprised by the mix of issues that the employment team would be involved with at any one time. Nothing could have prepared me for the challenge of putting case bundle together!!!

Diarra: I didn’t know what to expect from the secondment and went into it with an open mind. What suprised me, was the amount of challenging calls the advice line receives. The variety of concerns raised and the fact that calls can come from senior managers and HR. As an advisor you need to ensure that you are as equipped to deal with this.


Qu:  What were the challenges?

Hari: Having to constantly think on your feet and get up to speed with a number of different areas of law in a short period of time.

Diarra: Learning everyone’s names… I would have to say getting used to a completely different environment in a short space of time, but it was good to try a new way of working.


Qu
: Would you recommend the experience and what we’re your takeaways?

Hari: Absolutely! Working at Howard Kennedy has really opened my eyes to how dynamic and constantly changing employment law is.  It has been great to have gained an insight into this. It’s shown me the value of providing clear, practical solutions to clients, which I’m really keen to develop in my work at Protect training businesses and advising whistleblowers. Visiting the Employment Tribunal and Employment Appeals Tribunal with Counsel (while daunting!) has really helped me understand some of the issues faced by litigants in person when presenting cases.

Diarra: Yes, I’d recommend the experience, as I got as much as I put in and put my hand up for everything! I think this was appreciated. My takeaway was never underestimate how valuable your input can be. Especially to a whistleblower in the midst of a challenging work situation.

Qu: What will you miss?

Hari: The weekly lunch and learn sessions with the other corporate trainees and the amazing office. And also working round the corner from Borough Market! But I’ll miss some of the great people I met – but hope to stay in touch with them!

Diarra: The people without a doubt.


I joined Protect as a volunteer just after I finished my Legal Practice Course and although I had only a basic grasp of aspects of employment law, Protect’s work really appealed to me.

Summarising Employment Tribunal judgments and highlighting the relevant discussions of the Public Interest Disclosure Act seemed daunting at first, but after an informative induction and feedback on a few initial case summaries, I felt much more confident pulling out and writing up the relevant points for use by Protect’s advisers. I have learnt so much over the last six months, seeing the legal challenges from the perspectives of both the whistleblower and the employer. As well as becoming familiar with the legal tests applying to whistleblower protection, I also attended internal meetings and took part in training sessions on whistleblowing law.

Having spent six months at Protect, I have now come to the end of my time here and am moving to a specialist corporate law firm in the City, Lewis Townsend LLP to continue my legal career.

The people at Protect have been inspiring for their commitment and empathy towards whistleblowers and I am so sad to be leaving. I will continue to recommend Protect as a fantastic and rewarding volunteering opportunity and can only hope the charity and its work receives the support it deserves.

 

By Protect volunteer Jo Cousins