We are pleased to see the Government give reassurance to whistleblowers raising concerns about Furlough Fraud.  Neither the proposed powers (in the Finance Bill) to recover money paid illegally through the scheme (formally called the Coronavirus Job Retention Scheme) nor fraud charges will be levelled at those who raise these concerns.

Background

Furlough fraud makes up 59% of the 510 Corona Virus related cases we’ve taken on the Advice Line since March 23rd.

HMRC have also seen thousands of concerns on the issue raised through their secure reporting channel.  A key area of advice whistleblowers ask for time and time again is their own liability if they are forced to work while being Furloughed.

We have previously written about how the typical Furlough Fraud situation revolves around the employer either asking or threatened employees to volunteer, help or just work while being part of the scheme.  This puts the employees in an almost impossible position where they have no power over the decision to be part of the scheme, and often little chance to refuse to work, as otherwise they may be fired or made redundant.

Whistleblowers publicly reassured

After sharing our concerns with Lord Wills he asked a Parliamentary question seeking reassurances that whistleblowers will not be pursued to repay illegal payments or prosecuted for fraud should they work while be furloughed. Lord Agnew of Oulton answering for the Government said:

‘In cases of fraudulent claims in respect of the Coronavirus Job Retention Scheme, HMRC will seek to recover funds from the claimant employer.

Using powers that are before this House in the Finance Bill, where the employer is an insolvent company and an individual with management responsibility knowingly made an excessive claim, HMRC will be able to seek to recover funds from that individual.

Whistleblowers can be confident that HMRC will act to protect their confidentiality, and that they will not be liable for recovery. This does not include cases where the employer and employee conspire to defraud the scheme.’

The Government reassurances to whistleblowers, matches a similar commitment made to directors namely that honest mistakes would not be punished – prosecution will be focused instead on those who act dishonestly.   It appears that the Government’s statement means that Furloughed workers who raise concerns about their employer forcing them to work while being part of the scheme will not be pursued for the money paid to them.  It is the employer who commits the fraud, the employer who receives the payment, and the employer who should suffer any penalty.

Lord Agnew’s last point reminds employees that the act of whistleblowing does not protect them against any prosecution for their own wrongdoing.  There may be cases where employees are working with employers to defraud – but these are not the employees calling us.  We trust that whistleblowers who are working under threats from their employers will not be treated as co-conspirators. We would welcome clarification that anyone who raises a concern – whether internally with their employer, or externally with HMRC – will be exempt from any conspiracy charge.

More to do

We would now like to see HMRC commit to reopening the telephone reporting service so that whistleblowers looking to Speak Up about Furlough fraud can get reassurance from HMRC and information on the process.  This is especially important given the changes that have now taken place with the scheme which serves to increase the complexity of the arrangements.


Whistleblowing charity Protect is calling for the Charity Commission to introduce whistleblowing rules or regulations for the sector, following serious failings at the Royal National Institute of Blind People (RNIB) – which the watchdog has called ‘one of the worst examples of poor governance and oversight having a direct impact on vulnerable people’.

The Commission has issued an alert to all large complex charities about the importance of safeguarding processes, governance and whistleblowing following the inquiry into the RNIB. The failings led to repeated incidents where young people in its schools and residential homes were put at risk, or suffered harm and distress.

Protect Chief Executive Liz Gardiner said, “We welcome the Charity Commission’s reminder to charities to ensure they have effective whistleblowing or Speak Up arrangements, and the emphasis on anti-retaliation measures towards whistleblowers.  However, asking charities to be ‘mindful of the issue’  may not be enough to really drive forward change.

The time has come to introduce whistleblowing rules in this sector.  Rules which can be enforced by the regulator will help guide charities on the standards expected of them in this area and hold those falling short to account.

As we saw in our research into charity sector whistleblowing, Time To Transform,  there is more work needed in the third sector to prevent the victimisation of whistleblowers, and train staff in how to effectively act on concerns raised.”

#TimeToTransform


Protect is seeking reassurance from HMRC that whistleblowers who contact the tax authority over furlough fraud will not be faced with paying back their employers’ fraud, or face prosecution if their employer forces them to work while on the scheme.

Calls to Protect’s Advice Line have seen record-high levels, with  more than 250 calls related to furlough fraud – the single biggest issue Protect has dealt with in its 27-year history. During the three-month lockdown, from March 23-June 23, our Advice Line has handled more than 1,120 calls.

Protect has recently responded to a HMRC consultation giving new powers to HMRC under the Finance Bill.

Head of Policy Andrew Pepper-Parsons said, “Our concern is the powers could be turned against whistleblowers and should be reserved for use against those who sign off the fraud. Whistleblowers have no say, let alone any power over the decision to be furloughed and face the prospect of dismissal if they then refuse to work while being on the scheme  If the Government can reassure directors that genuine mistakes over applying for the scheme will not be prosecuted whistleblowers should be given a similar commitment.

Many calls to Protect’s Advice Line on furlough fraud have been around whistleblowers own liability in relation to the fraud.  Much like the assurances given to directors that mistakes won’t be punished, we’d like to see this extended to whistleblowers.”

Protect statistics (as of June 15)

Top three industries (92% of which are from private sector)  are from :

Hospitality (20%)

Manufacturing (12%)

Retail (12%).

Of the furlough cases received -66% – have been from organisations with less than 50 staff.

Protect has also raised with HMRC officials concerns over the closure of HMRC’s fraudand if an alternative – such as a secure live chat option – could and will be provided for people who seek reassurance about reporting fraud. We appreciate some modest changes have been made to the website since Protect’s conversation but we would like more to be done.

“The other reassurance we seek-  and it is a big unknown – with so many reports being made to HMRC we would like to know a firm plan is in place to investigate the thousands of fraud reports received by HMRC” said Andrew Pepper-Parsons.

 

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 via their online form.  You can also contact Protect for advice through our online form or by calling 020 3117 2520


Research by Protect – Silence in The City 2 –  into whistleblowers who work in finance in the City has found 70% who spoke up about workplace wrongdoing were victimised, ignored, dismissed, or felt forced to resign after whistleblowing.

The research analyses the whistleblowing cases of 352 finance workers who called the Protect Advice Line for advice about workplace wrongdoing they had witnessed between January 2017 and December 2019.

Head of Policy at Protect, Andrew Pepper-Parsons, said, “We conducted research in 2012 with law firm Slater & Gordon and our report Silence in the City looked into the experience of whistleblowing in the financial services sector.  At that time the financial crash and Libor scandal raised the question – why hadn’t whistleblowers come forward with concerns? Our research back then found a lack of trust and transparency. We decided it was time to once again scrutinise our Advice Line data and look at calls from finance workers.”

Silence in the City 2, once again published with the support of Slater & Gordon, found although more workers are raising concerns with their employer since 2012, 70% were being victimised, ignored or felt forced to resign after blowing the whistle. Discrimination and harassment cases now form part of the top six concerns raised by whistleblowers.

Key findings: (SITC – Silence in the City)

  • 70% of whistleblowers were either victimised, dismissed or resigned
  • Discrimination and harassment cases form a top concern raised by whistleblowers (possibly due to the #MeToo movement)
  • Top concerns – 19% has shifted from fraudulent or criminal activity in SITC1 which includes theft of client’s funds, expenses fraud etc. (19%), to legal or regulatory breaches e.g. mis-selling of financial products, failure to follow compliance rules around loans etc.
  • 33% of concerns were ignored – a disappointing increase from 30% in Silence in the City 2012)
  • More trust among whistleblowers to use internal whistleblowing arrangements – SITC1 found 78% of whistleblowers raised their concerns internally, i.e. with their employers, new research SITC2, shows increase to 93%.
  • Whistleblowers are 10% more likely to raise their concern a second time. In SITC1, only 20% of financial services whistleblowers raised their concern a second time, in SITC2 this has risen to 30%.

One case study in Silence in the City 2, is ‘Carl’ (whose name has been changed) explained he blew the whistle on sexual harassment, bullying and racism after more than ten colleagues, across nine different departments were affected. His life was made difficult after blowing the whistle and he felt resignation was the only way out.

He said, “I don’t in all my years think I’ve known so many grown men and grown women tell me the trauma they’ve gone through and I’m not the sort of person that upsets easily. It’s been extremely upsetting to see people abuse their position of power and misuse authority to gain benefit.”

Clive Howard, Principal Employment Lawyer at Slater & Gordon, said, “That 7 in 10 raising concerns were victimised for doing so and a third reported that their concerns were ignored is deeply troubling. The findings from Silence in the City 2 confirm our own experiences with clients, blowing the whistle is a lonely exercise in Financial Services. The whistleblower invariably is forced to act alone, raising their concern without any support from colleagues.”

Protect says whilst positive there is much more awareness and trust by employees in the internal whistleblowing arrangements put in place by employers, and more employees are whistleblowing and giving their employers the opportunity to put things right – this could very easily be reversed if organisations don’t change their behaviour towards staff who speak up.

Protect Chief Executive Liz Gardiner said, “Cultural change in financial services sector has stalled.   There needs to be more than lip-service to the stronger rules and regulations imposed on the sector – whistleblowers are speaking up, but our research suggests too many employers are not listening-up in response.  A failure to listen to the concerns raised – and failure to prevent whistleblowers being victimised – may increase the risk of harm and wrongdoing going unchecked.”

Read the report Silence in The City


We would like to express our huge thanks to our Legal Support Network – made up of lawyers and barristers –who are helping us with case work for whistleblowers who have contacted us.

Our Advice Line is extremely busy and we are experiencing unprecedented record high call levels. Our Advisers are taking calls from all sectors but the biggest concern we are dealing with are concerns around furlough fraud.

In the last few weeks we have been able to refer pro bono case work to our Legal Support Network who have been helping with the following issues:

  • Reviewing documents including applications to employment tribunals
  • Advising on cases around ‘worker status’ – looking at whistleblowing protection for contractors and other unusual employee relationships
  • Advising on merits of appeal to Employee Appeal Tribunal
  • Advising on alternative types of claim other than employment tribunal – for example pursuing a claim via the High Court
  • Advising on complex Non-Disclosure Agreements

Protect Legal Officer Hari Raithatha said, “We are extremely grateful to colleagues in our Legal Support Network for the invaluable support they have provided to whistleblowers during one of the busiest times our charity has ever experienced. The important role whistleblowing plays in keeping us all safe from harm has been highlighted during Covid-19.

“We hope that employers will listen-up when concerns are raised – but we’re grateful to the many lawyers and barristers who have kindly agreed to help.”

Protect’s Legal Support Network:

Daniel Stilitz QC of 11KBW

Mukhtiar Singh of Garden Court Chambers

Joseph England of 3PB

Chris Milsom of Cloisters Chambers

James Laddie QC of Matrix Chambers

Solicitors Paul Daniels at Keystone Law

Leigh Day Solicitors

Slater & Gordon Lawyers

Harrison Clark Rickerbys

Kingsley Napley

Landau Law

We would like to welcome Nick Siddall QC, Ed Kemp, Ben Gray, James Wynne, Sophia Berry, Kieran Wilson and Jeremy Lewis of Littleton Chambers to Protect’s Pro Bono Legal Support Network.

If further law firms or Chambers wished to lend their support and advice during the Covid 19 crisis, Protect are co-ordinating pro bono work. Please contact hari@protect-advice.org.uk


Protect’s Head of Policy, Andrew Pepper-Parsons features in the latest issue of Care Markets magazine, discussing how Covid-19 has affected the sector.

Protect, the UK whistleblowing charity, helps whistleblowers safely raise concerns about wrongdoing, abuse or poor practice. We run an advice line where whistleblowers can call us for free confidential advice about how to raise their concern. We also work with organisations to help them create strong, accessible whistleblowing cultures, and we carry out training, consultancy and organisational reviews when things have gone badly wrong.

In terms of Covid-19, our advice line has been extremely busy with record high call levels, exceeding our annual 3,000 calls. Since lockdown, 44% of our care cases have been on issues from a lack of personal protective equipment (PPE) to worries about having to work when the person should be self-isolating. We’ve even had calls about care home staff being refused to bring in their own PPE. Sadly, we’ve also heard from whistleblowers who have been victimised or dismissed when they raised their concerns with their employers.

Prior to lockdown, calls from care providers made up around 11% of calls, and we’ve seen a slight rise. When a whistleblowing story features prominently in the media, as we saw with the #Metoo movement and as we have seen in the pandemic itself with the PPE crisis, it can encourage more people to speak up. But people are also scared for their job security and livelihoods so may choose to stay silent about concerns. It is vital employers reassure staff, they encourage speaking up and do not victimise staff for doing so.

If calls to our advice line are a snap-shot of the wider picture in the care sector, then it appears that a great many care homes have a poor, or worse, a non-existent whistleblowing culture. Covid-19 has shone a light on the importance of key workers who have all continued to work during the pandemic. NHS and care workers have rightly been called heroes for putting their own lives at risk to care for the sick and elderly residents in care and nursing homes.

I hope the pandemic shines a light on the importance of healthy whistleblowing policies and processes in the care sector and why it is vital to have in place a healthy ‘speak up and listen up’ culture for care staff. Staff are the eyes and ears of an organisation and can act as an early warning system of potential risk or malpractice. Staff who feel comfortable raising a concern, or whistleblowing, may possibly save lives or complex litigation down the line. But care staff need to feel supported and know they will be listened to. At Protect, in addition to our advice line, we support organisations to put in place best practice arrangements and help train those who handle whistleblowing matters. We do work with some care providers but would like to work with many more. It seems many care providers have not yet recognised the value of whistleblowing – I really hope the pandemic changes that and more operators will come to see its value too.

This blog is published in Care Markets, June 2020

 

 

 

 


Protect’s pilot examining whistleblowing culture in the Third Sector has found key weak spots it believes are symptomatic across many of the 168,000 charities in England and Wales.

Chief Executive, Liz Gardiner said, “The room for improvement in the Third Sector is well documented following the Oxfam and Save the Children scandals. But in recent weeks we have once again been reminded how vital the work of charities is – and how vital speaking up about wrongdoing is to keep us all safe.

She added, “We know charities are very well aware of safeguarding, but we wanted to assess their whistleblowing culture.”

A cohort of 20 mid to large sized charities took part in the pilot between October and January this year to test their whistleblowing culture. Self-assessing using Protect’s Whistleblowing Benchmark, the charities scored themselves across governance, staff engagement and effective operations.

The results, documented in Time to Transform: Insights from Protect’s Third Sector pilot found:

  • Despite over 80% of charities claiming to have a zero tolerance approach to whistleblower victimisation –  none monitored the risk of victimisation through any aftercare process to monitor wellbeing of staff who had raised concerns
  • Only 52% of charities differentiated between whistleblowing and grievances – making it much harder for staff to know where to go with concerns and the impact on the concern being properly dealt with
  • 86% of charities failed to offer whistleblowing training to staff receiving and acting on whistleblowing concerns

“Our findings on attitudes to keeping whistleblowers’ names confidential and on victimisation are revealing.  If whistleblowers are not given assurances about confidentiality, and if no action is taken when victimisation occurs, others will not be encouraged to speak up” said Protect’s Liz Gardiner.

Stephanie Draper, CEO at international development body, BOND, said, “Whistleblowing is an essential component of safeguarding, so it’s encouraging to see organisations taking action to understand how effective their whistleblowing systems are. Many organisations have, or are in the process of appointing whistleblowing champions and teams to ensure the right arrangements are in place for staff to speak up. This will help make staff feel safe and confident that any complaints or concerns raised will be dealt with appropriately and they will not be victimised.

She added, “Getting whistleblowing right starts with having good governance and policies, but it has to go further than that and this means providing training so staff know their responsibilities and by creating a culture where speaking up is championed.”

Time to Transform was shared with ACEVO, who issued a report ‘In Plain Sight’ last year which highlighted bullying in the third sector, and who are calling on the Charity Commission to do more to investigate bullying.

ACEVO Head of Policy, Kristiana Wrixon, said, “I welcome any work that is undertaken to strengthen whistleblowing processes in charities. The findings of the pilot are interesting, however the report looks at a small group of the largest charities by income, representing a tiny percentage of the sector, so generalisations cannot be made from this information alone. I hope that this report leads to further work that will support charities of all sizes that want to strengthen their whistleblowing practice.”

Protect hope to maximise the pilot findings and work with participants to spread the word about their positive experience and benefits of the Benchmark process, but want a wider scale pilot to help raise awareness amongst the 168,000 charities in England and Wales. Protect is also hoping to work more with smaller charities helping them to adopt good whistleblowing processes.

Read the report Time to Transform

#TimeToTransform
#100charities


Survey findings of 150 health care staff by frontline lobbying group for doctors, The Doctors’ Association has highlighted the shocking treatment of NHS doctors who dared to blow the whistle on inadequate PPE supplies, which featured on BBC Newsnight this week.

The survey respondents were made up of 25% of nurses and just under 25% foundation doctors, 10% were middle grade and just under 10% were consultants. A smaller number of responses were from midwives, physiotherapist paramedics, radiographers and speech and language therapists as well as porters and security staff.

Doctors’ Association UK Law and Policy Lead, Dr Jenny Vaughan, told BBC Newsnight, “These are people who had tried the right channels. They hadn’t just gone and tried to put things on social media because they were trying to be negative. These were people genuinely raising concerns who went to the people who should have listened and felt that they either couldn’t raise a concern or weren’t listened to. So they had to find another outlet because people are putting their lives on the line.”

Just under 50% of respondents have been told not to raise concerns or speak to the press regarding COVID-19 all PPE by trust management and senior colleagues. The survey found 75% of responses had concerns about not having access to PPE as outlined in PHE guidance for the setting they working, whilst 55% reported that they had not been bullied for raising concerns – but about a third did report bullying. This was most commonly by managers, trust management, senior colleagues and in some cases the senior executive of the hospital.

The survey found 50% of our respondents did not feel confident about raising concerns locally without fear of reprisal and the same amount had this fear about raising their concerns  publicly.

Protect Chief Executive Liz Gardiner said, “The survey findings from the DAUK survey paint an extremely varied picture of the speak up culture across Trusts in the UK. We have had many calls to Protect’s Advice Line from NHS workers with concerns over PPE and some NHS staff have told us they do not feel safe speaking up, or are not aware of what support channels exist.

“It is disappointing to hear that 50% of DAUK’s survey respondents did not feel confident about raising concerns locally, and that some staff have reported bullying by senior managers.  Trust leaders need to hear when things are going wrong and what their Freedom to Speak Up Guardians say about the importance of speaking up.  Failing to listen up can undermine the whistleblowing culture of the trust and ultimately this may endanger the safety of staff and patients.”

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.


Protect is calling on the HMRC to reinstate its fraud hotline for whistleblowers who are trying to raise public interest concerns about misuse of taxpayers’ money.

Protect, which handles around 3,000 whistleblowing cases to its Advice Line each year – has seen a spike in calls to its Advice Line in recent days on furlough fraud.  We are calling on HMRC to reopen its fraud line for whistleblowers who want to speak out on employers exploiting the Government’s furlough scheme.

HMRC have said its ‘telephone and postal contact are temporarily unavailable because of measures put in place to stop the spread of coronavirus (COVID-19).’

Liz Gardiner, Chief Executive, Protect, said: “We are very disappointed HMRC has closed its fraud hotline for people to call and report furlough leave fraud: our experience is that this is a new emerging problem that needs to be tackled.

“Our Advice Line is taking many calls from people about furlough fraud – around 25% of our Covid-19 calls have been around this issue, and the trend is upwards. People have simply been told to work despite being furloughed and they obviously feel uncomfortable about this as its wrong – itis deceiving tax payers out of money. We appreciate the pressure HMRC are under but it may be shortsighted not to have an easy way for whistleblowers to report fraud.”

Information about furlough fraud can be reported via the HMRC online digital reporting service which is available by visiting www.gov.uk and searching ‘Report Fraud to HMRC’. HMRC is currently operating an online reporting tool designed to allow the public to disclose instances of any fraud for which HMRC is responsible, in this instance the Job Retention Scheme.

But Protect argue an online form is not ideal as many people are not comfortable using an online service which cannot give them reassurance about their confidentiality, and people cannot ask questions if they are unsure about something and need advice.

An HMRC spokesman said, “HMRC treats its duty of care to those who report fraud to us as a priority and we have a number of mechanisms set in place to ensure the safety of those individuals.”

HMRC have in place the following:

·Completion of this form (and under normal circumstances contacts made to our fraud reporting telephony service) is entirely anonymous unless the individual reporting wishes to provide contact details for further contact.

·Section 3 of the reporting form is designed to give insight into how widely known the information is and this is used in our assessments when reviewing any risk associated with acting upon information provided.

·All information sent to our fraud teams is sanitised before sharing with compliance/criminal intervention teams to remove any reference to a human source.

·HMRC operate a policy of “Neither Confirming Nor Denying” the existence of a human source in any of our activities.

Whistleblowing on furlough fraud is in the public interest and workers should not be deterred trying to do the right thing by speaking up to stop harm.

Protect’s recently published Principles for Recommended Practice: Better Regulators Guide recommends all regulators have in place a whistleblowing hotline.


The High Court has today handed down judgment and awarded whistleblower Amjad Rihan $10.8 m in damages against his former employer, Ernst and Young.

Protect Chief Executive, Liz Gardiner said: “We’re pleased to see this award to Amjad Rihan, who courageously blew the whistle on serious financial irregularities and who suffered career-long losses as a result. A whistleblower who had exhausted internal processes, he acted reasonably in bringing this global scandal to public attention via the media and the judge said he would have had a strong whistleblowing claim. His employer owed him a duty of care, and failed in that duty.

While this was not a claim under the whistleblowing law (The Public Interest Disclosure Act 1998 “PIDA”), nevertheless the judge took into account the principles of PIDA when assessing whether Amjad acted reasonably. We’re also pleased to see the judgment accepts that the public interest should not be constrained by what may be an offence in other jurisdictions. PIDA states that a disclosure is not protected if the whistleblower commits an offence in making it – but today’s judgment clarifies that should only apply to offences under the laws of Great Britain.