Whistleblowing – The Freedom to Speak Up Review

This week the findings of a report by Sir Robert Francis into whistleblowing in the NHS were released. This report made a number of recommendations to improve the treatment of whistleblowers in the NHS and to improve transparency within the organisation.

The term ‘whistleblowing’ or ‘whistleblower’ in employment law has a particular meaning. It relates to the making of a protected disclosure by an employee or worker to their employer or other recognised person. To qualify as a protected disclosure, an individual must reasonably believe that what they are disclosing demonstrates that a criminal activity has or is being committed; that there is a breach of legal obligations by the employer; that there is a health and safety concern; that there has been a miscarriage of justice or that the environment is being damaged. Any disclosure must be in the public interest to qualify for protection. If a disclosure is made in bad faith, then this does not prevent the employee from having certain protections but can affect any compensation awarded to them.

It is common to hear of whistleblowers in the NHS or in the care industry, with common disclosures relating to the standard of care of patients or residents as well as financial irregularities.

If an employee or worker does make a protected disclosure or blows the whistle, then they are protected from suffering a detriment because of their disclosure i.e. they can’t be treated badly in terms of the work that is allocated to them, their pay or any other form of hostilities, for the reason of their disclosure. They are also protected from being dismissed because of the protected disclosure, regardless of how long their length of service.

Despite these protections it is not unusual to see stories of whistleblowers in the media or on the news, who have been treated in a bad way at work following their disclosure. They may have been suspended from work, ostracised or dismissed.

The treatment of whistleblowers in the NHS was a particular cause of concern, resulting in Sir Robert Francis’ investigation and report which was published yesterday (https://freedomtospeakup.org.uk/the-report/ ). Jeremy Hunt, Health Secretary, says ‘the message must go out today that we are calling time on bullying, intimidation and victimisation, which has no place in our NHS.’ Some of the key recommendations include:

• ‘Freedom to Speak Up Guardians’ in every hospital to support staff and relay their concerns;
• a ‘National Whistleblowing Guardian’ working with the Care Quality Commission to review the most serious cases;
• Training for all NHS staff on how to report and handle such protected disclosures;
• Ensuring every NHS Trust ‘actively fosters a culture of safety and learning in which all staff feel safe to raise concerns;’
• Requiring NHS Trusts to publish details of formal protected disclosures; and
• Requiring the Health Secretary to review annually how these complaints have been dealt with.

The government intend to implement these recommendations quickly. It is hoped that such procedures will avoid workers being put off reporting serious concerns in the workplace.

If your business wants assistance with implementing a Whistleblowing policy or advice on how to handle a whistleblowing situation or if you are a worker who has raised or intends to raise a protected disclosure, please contact us now for advice, we’re here to help.

Tom Bernard, Employment Solicitor
12 February 2015