Whistleblowing – A lose, lose situation?

The following is a guest post from my wife Kate who is an Associate Lecturer with the Open University.

When I was a child we had a dog who, from time to time, would take himself off on jaunts. We would watch, with a mixture of amusement and frustration, as he would trot past the lounge window, his head turned firmly in the opposite direction, presumably in the vain hope that if he could not see us, we could not see him.

It would appear, judging by the recent phone hacking scandal, that News International have been operating with the same level of blinkered denial – keep looking the wrong way and so will everyone else. Unfortunately that policy is now crashing fairly spectacularly on the buffers. This is not due, however, to any whistle blowing (i.e. revelations of malpractice) by NI staff, but because, initially, of a fairly innocuous story about Prince William having a knee injury.

In a recent article by Nick Cohen in the Observer he notes that not one member of NI’s staff challenged the management and wryly comments that had they done so, “their editor would have fired them and in all likelihood they would never have worked in the media again.” This conclusion does not appear to be without foundation. Cohen points, for example, to the case of Paul Moore, a risk manager for HBOS, who raised concerns about the level of lending in advance of the banking crisis. His reward was to be made redundant and to be ostracised by the banking community ever since.

Cohen makes a plea for the ‘law to save whistleblowers, not silence them’, but theoretically the law does that already. The Public Interest Disclosure Act 1998 (“PIDA”) offers protection for employees making qualifying disclosures from victimisation. It has been recognised for some time that whistle blowing might have averted, for example, the Clapham rail crash or the Ziebrugge ferry disaster, and the enactment of PIDA was an attempt to empower and encourage constructive whistle blowing. Efforts have also increasingly been directed at encouraging corporate bodies to develop transparent policies on whistle blowing and a culture which values early disclosure of malpractice.

Despite this, many employees appear to remain ignorant of the protection available and frightened of reprisals if they raise concerns, perhaps with good cause. Public Concern at Work, (‘PCAW’) a charity set up to advise potential whistleblowers and promote greater awareness of the role and value of whistle blowing, has recently published a report on its website assessing the effectiveness of whistle blowing in the Care Sector. One of its key conclusions is that more proactive promotion of ‘best practice whistle blowing arrangements’ is required, with more transparency and clarity in the process to ensure that it is sufficiently safe and straightforward for employees.

According to Nick Cohen, the Commons Health Committee is suggesting a different emphasis – the imposition by the General Medical Council, and other regulators of the NHS, of punishment where clinicians have failed to speak out. I wrote an article some years ago for the Veterinarian Nursing Journal on the implications of similar requirements under a proposed new Code of Conduct for their profession. My conclusions then were that this could lead to employees being caught in a ‘damned if I do, damned if don’t’ situation: if they did not report suspected malpractice, they risked being in breach of their contracts and, if they did, they risked victimisation, both in the immediate and long term.

Cohen views the need to consider obligatory measures as a sad indictment on a cowardly society, but I have some sympathy with those caught in such a predicament. It seems to me that legal compulsion of care sector employees can only be justified if it is accompanied by clear and supportive guidance and protection for employees and a shift in the mindset of their employers towards whistle blowing.  I suspect this will only happen if further resources are invested in the activities of organisations, such as PCAW, to educate and inform.  Ideally employees should report concerns, not because they have to but because they feel empowered and encouraged to do so in a culture which values public interest disclosure and is not, like my dog, determined to look the other way.     



Article first published on the Open University blog Legal Verdict.