Whistleblowing?

Whistleblowing? How to
ensure staff speak up when it
matters
CHF Conference
2 December 2014
©PCaW 2014 - 00 44 20 7404 6609

What is whistleblowing?
A worker raising a concern about wrongdoing, risk or
malpractice with someone in authority either internally
and/or externally (i.e. regulators, media, MPs)
Source: PCaW
©PCaW 2014 - 00 44 20 7404 6609

Grievances and concerns
Grievances
Concerns
risk is to self
need to prove case
rigid process
legal determination
private redress
risk is to others
tip off or witness
pragmatic approach
accountability
public interest
©PCaW 2014 - 00 44 20 7404 6609

Public Concern at Work
PCaW is an independent charity, founded in 1993.
We provide:
free confidential advice to people concerned about wrongdoing in the workplace
who are unsure whether or how to raise their concern;
training to organisations on policy and law of whistleblowing;
campaign on public policy; and
promote public interest whistleblowing laws.
©PCaW 2014 - 00 44 20 7404 6609

Advice line
We have advised
over 17,000
whistleblowers to
date.
Top sectors:
health, care,
education,
charities, financial
services.
Top concerns:
financial
malpractice, public
safety and patient
safety.
Source: PCaW
©PCaW 2014 - 00 44 20 7404 6609

Whistleblowing then
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Whistleblowing now
Whistleblower Michael Woodford settles with
Olympus?
The British chief executive who blew the whistle on a $1.7bn (£1bn) corporate fraud at
Japanese electronics giant Olympus has brokered an out-of-court deal with the company
over his sacking, believed to involve a multi-million pound pay-out.
29 May 2012
The Telegraph
NSA whistleblower Edward Snowden is nominated
for Nobel Peace Prize
Former government contractor could join President Obama,
Henry Kissinger and Nelson Mandela in historic list.
29 January 2014
The Independent
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Keep quiet?
Raise
internally?
Go Outside?
A concern
about
malpractice
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Myth 1: Whistleblowers are persistent
The majority of whistleblowers (44%) raise a concern only
once and a further 39% go on to raise their concern a
second time. Majority (83%) will only try internal options
once or twice and then give up.
• Small window of opportunity to address wrongdoing
• Importance of front line and middle management training
Very few are persistent in raising their concern- only 22
individuals from our research went on to raise their
concern 4 or more times.
Worryingly, 74% also say their concern was ignored
©PCaW 2014 - 00 44 20 7404 6609

Myth 2: Whistleblowing is always going outside
83% of whistleblowers blow the whistle internally.
Only 0.5% first raise their concern with the media.
Supported by YouGov survey in 2013: The majority of
working adults in Great Britain (83%) said if they had a
concern about possible corruption, danger or serious
malpractice at work they would raise it with their
employers.
©PCaW 2014 - 00 44 20 7404 6609

Myth 3: Whistleblowers are always trashed
60% of those who called our advice line did not report any
response from management (either negative or positive).
Of the 40% who told us of a response, the most common
action is formal action short of discipline and 15% were
dismissed.
Our YouGov 2013 survey: overwhelming majority of British
workers (72%) view the term whistleblower as positive or
neutral
©PCaW 2014 - 00 44 20 7404 6609

Myth 4: Whistleblowers are junior employees
53% are skilled or professional workers
39% had been working for their employer for less than two
years
Junior employees who raise concerns are more likely to be
ignored
Senior employees are more likely to be dismissed
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Myth 5: Whistleblowing is unusual
1 in 10 workers said they had a concern
Two thirds of workers raised their concern
Of those that felt unable to raise their concern, fear
that nothing would be done, or reprisal, were the
most common barriers
©PCaW 2014 - 00 44 20 7404 6609

EY Survey Headlines
• 93% of respondents said they have formal whistleblowing arrangements
in place. But only 43% of UK workers say they have a whistleblowing
policy at work
• But 1 in 3 think their whistleblowing arrangements are ineffective
• 54% said they do not train key members of staff designated to receive
concerns
• 44% confuse personal complaints with whistleblowing
• 1 in 10 say their arrangements are not clearly endorsed by senior
management
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Policy framework
• Incident reporting, SUIs, safeguarding, duty of
candour….where does whistleblowing fit?
• The organisational statutory duty of candour is now in
force.
• Health professionals have a professional duty to raise
concerns
• The duty of candour is likely to also become a professional
duty. This is integral to the raising concerns framework.
• Freedom to Speak Up Review
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The Public Interest Disclosure Act 1998
Lord Nolan’s praise for ‘so skilfully achieving the essential but delicate balance between the
public interest and the interest of the employers’.
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Changes to PIDA
Public interest test replaces good faith test for a disclosure to
be “protected” under PIDA
Good faith only relevant to compensation when a claim is won
(the tribunal may deduct up to 25% of the compensation if
found the claimant made the disclosure in bad faith)
Liability for co-workers who victimise whistleblowers.
• Employers can be held vicariously liable for these employees.
• Reasonable steps defence for employers.
MPs are now prescribed persons under PIDA (i.e. same legal
tests for disclosure to a regulator)
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©PCaW 2014 - 00 44 20 7404 6609

©PCaW 2014 - 00 44 20 7404 6609

Code of Practice – the right messages for a speak
up culture
• Train your managers
• Provide options to raise a concern confidentially – and be clear on
how you can protect someone’s identity - and limitations
• Provide options for raising concerns including senior managers, an
identified senior executive and/or board member and relevant
external organisations
• A commitment that staff will not be victimised for raising a
concern. Follow this up in practise.
• Respond in a timely manner
• Provide feedback
• Protect and support
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Code of Practice – testing the culture
Conduct periodic audits of effectiveness of whistleblowing
arrangements:
• The number and types of concerns raised and outcomes of
investigations;
• Feedback from individuals who have used the arrangements;
• Complaints of victimisation;
• Complaints of failure to maintain confidentiality;
• Other existing reporting mechanisms;
• Adverse incidents that could have been identified by staff (e.g. consumer
complaints, publicity or wrongdoing identified by third parties);
• Any relevant litigation; and
• Staff awareness, trust and confidence in arrangements.
©PCaW 2014 - 00 44 20 7404 6609