A Review of the Activities of P u b l i c C o n c e r n at Wo r k at t h e m i l l e n n i u m
A brief word
Were you shocked by the child abuse scandal in North Wales, the infant deaths at the Bristol Royal Infirmary, the train crash at Ladbroke Grove, the problems at British Biotech or the corruption at the European Commission? Did you wonder how things could have been allowed to go so badly wrong? Do you think you might have made a difference had you been there? Time and again the official inquiries into these disasters reveal that people were aware of the dangers but either were too afraid to say anything or raised the concern to no effect. These incidents graphically show the costs of a culture where genuine concerns about wrongdoing at work are discouraged, ignored or suppressed. Each such incident fuels the search for victims and culprits and the drive for ever more regulation. Outside the workplace, these same attitudes foster the “walk on by” culture. Public Concern at Work offers practical help to people who believe there is an alternative to this cycle of inaction, indifference and isolation. We work mainly with employers and employees but also with organisations and people across the whole community. Our approach is that if an employee is so troubled by wrongdoing to raise that concern with friends and family, that concern should be openly raised and properly addressed in the workplace - or, where necessary, outside. It is only on this basis that an employer is able to take action if there is substance to the concern. It is only on this basis that an employee who is mistaken or misguided can be put right. The same approach lies at the heart of the new statutory framework in the Public Interest Disclosure Act. This legislation enables and helps employers and employees to address these issues in a constructive way which protects them and the public. People call this whistleblowing. This review looks at this issue and the activities of Public Concern at Work at the millennium.
Chairman’s Review The helpline at work
Cases from our files: 14 - Pocketing the Money 15 - Hard Men 16 - Witness Dismissed 17 - Informing Policy 18 - Too Close for Comfort 19 - Cut-throat Competition 20 - Charity begins on Holiday 21 - Media Madness Help for employers
PIDA at work
Strategy in action
P O L I C Y I N T O P R AC T I C E A Review of the Activities of P u b l i c C o n c e r n at Wo r k at t h e m i l l e n n i u m
Public Concern at Work Suite 306, 16 Baldwins Gardens, London EC1N 7RJ Tel 020 7404 6609, Fax 020 7404 6576, Email [email protected], Web www.pcaw.co.uk Company no 2849833, Charity no 1025557, VAT no 626 7725 17
As this report shows 1999 and 2000 were eventful and taxing years for us as our work on whistleblowing moved from helping to formulate policy to putting it into practice. The introduction of the Public Interest Disclosure Act in the summer of 1999 represented a welcome reward for everyone who had endorsed our approach to legitimate whistleblowing. While the support we have had from many quarters enabled us to exercise influence over the approach and detail of this private member’s bill, little could have been achieved without the strong support of the Government. Since then demonstrations of the Government’s commitment to the Act have been patchy. Following the early steer from the Committee on Standards in Public Life, both the health service and local authorities were quick to recognise the implications and value of the legislation. In the City and among large businesses, organisations have begun to take heed of this new climate for whistleblowing. Some public authorities and major charities have introduced sound whistleblowing policies and leading employers have recommended their staff to seek independent advice from us. However, the general picture - particularly among small and medium sized firms - is that levels of awareness remain low and we have not so far been able to persuade the Government to address this. As a result we have had to take on the promotion of the legislation. This is quite a challenge for a charity as small as Public Concern at Work. Such success as we have had has only been possible with the support of enlightened employers, unions and the media. Events have also played their part. The public inquiry into child heart operations at Bristol Royal Infirmary was prompted by anaesthetist Steven Bolsin’s whistleblowing. The Report of the North Wales Child Abuse Inquiry vindicated social worker Alison Taylor who had been sacked for blowing the whistle. The resignation of the European Commission was set in train by auditor Paul van Buitenen’s disclosures. And problems at
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This Review At a Glance
C U T T I N G A PAT H • The Public Interest Disclosure Act (PIDA) came into force on 2 July 1999 – four years after MPs first asked us to promote and draft such a law • PIDA maintained support among the business community, dispelling fears that it would be a regulatory burden • Our campaign against a cap on compensation under PIDA was vindicated when one of the first awards was for £293,000 DELIVERING THE GOODS • Our free helpline gave impartial advice to employees on over 850 prospective or actual whistleblowing issues • 85% of helpline clients go on to recommend the service • 71% of clients informed us that they followed our advice OFFERING A HAND • We provided training and guidance to employers and regulators on whistleblowing • Our compliance toolkit and services were used by major businesses, public authorities and across the NHS. Leading employers recommend our helpline to their own staff • We worked with Unison on a practical guide for their members on PIDA
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S TA N D I N G O U R G R O U N D • We continued to emphasise the value of internal whistleblowing • We won our High Court case that the Government was wrong to withhold information about whistleblowing claims • We stressed in all our work that a whistleblower is a witness not a complainant I N F O R M I N G T H E D E B AT E • We were the only body which promoted and monitored PIDA across the UK • We produced expert guides to PIDA and briefings on caselaw and developments • We published papers on corporate killing, the Human Rights Act, trade secrecy and the ACAS code E X P O RT I N G T H E M E S S A G E • At the joint request of international union and business representatives, the OECD commissioned us as consultants on whistleblowing • The new European Commission appointed us special advisers on how its staff regulations should be amended to facilitate and protect public interest whistleblowing • We helped draw up South Africa’s new whistleblowing law The cost of this work over these two years was under £500,000.
Chairman’s Review - Continued
British Biotech were forced into the open when the company sacked its chief scientist Andy Millar over his concerns about the prospects for two new drugs. These incidents illustrate how important the whistleblower is and how much he needs support and protection. We believe that the Government should take steps to promote the new legislation and inform the public about the vital role of legitimate whistleblowing. Without such an initiative, employees will not know that there are safe and legitimate ways to raise concerns. The result will be that many will continue to turn a blind eye, while others will blow the whistle in the wrong way. Furthermore, unless employers are aware of the legislation, they cannot take advantage of its simple message and practical approach: some will not discover a serious problem until it is too late, while others may make an ill-considered response to what is now a protected disclosure. However, responsibility does not and can not lie only at the door of the Government. Regulators, employers, trade associations, unions, professional bodies, churches, voluntary groups, schools and colleges all have a stake and a role in addressing this issue. It was right that the chair of the Trade and Industry Select Committee recently called on the Government and interested bodies to promote the Act. As the legislative initiative and so much of the drive behind it came from MPs themselves, we hope that Parliament’s renewed interest in this issue will encourage others to take action. Linking policy to practice is the essence of our work with individuals and employers. Clients of our helpline continue to recommend it highly and we are determined to maintain that level of satisfaction. That the helpline also has the confidence of so many employers confirms the vital role that independent advice can play in an area where public and private interests meet. To be most effective that advice needs to be available at the earliest opportunity before unnecessary damage is done or the raising of the concern is mishandled. For this reason we are pleased that organisations across the public, private and voluntary sectors have begun to recommend our helpline to their own people.
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Chairman’s Review - Continued
As this Report details, we have spent the greater part of our resources over the past two years on educational activities. While this has included projects in schools and colleges, the bulk of it has been through offering training and guidance to employers and others involved in the workplace. Our Policy Pack has been well received as have the training courses we run for employers, unions and regulators. Over the coming year we will develop these tools and offer a subscription service which will ensure that appropriate levels of practical support and guidance are available for employers of all sizes. Through providing these services, Public Concern at Work earns the funds which enable the charity to operate. We shall continue to earn as much of our income as we can through our education and training work. However as we receive no state aid we will continue to rely on donations from individuals and grants from trusts. At the end of this report we set out what has been achieved so far and the tasks ahead of us. The fact that we have made any progress at all would not have been possible without the support of a range of organisations and people. On our own behalf and that of our clients, we thank them all. I do hope this report will encourage you to support our work, be it by making a donation or by using our services. Michael Brindle QC SUMMER 2001
“The adviser helped put things in perspective” P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 8
In 1999 and 2000, we recorded some 1600 requests to our helpline. Of these, 874 (54%) were public concerns – in that they were essentially about a perceived danger or threat to someone other than the client, rather than a private dispute he or she was involved in. These two years are the first time that the majority of our callers have had public concerns and this shift has been due to media coverage of the issue and the legislation. The following sections and charts give a breakdown of what we know about these 874 public concerns. TYPE OF WRONGDOING Two notable differences from the results of
our surveys before PIDA came into force are the significant increases in concerns
about public safety (as opposed to workplace dangers) and in the ‘Other’ category which includes competition,
Safety 28% Abuse in care 15%
consumer, environment and ethical issues. SECTORS Just under half (49%) of concerns came from the public sector. Although it is over three times as large, the private sector accounted for 40% of the concerns we handled. 11% of concerns came from the
Public Sector 49% Voluntary Sector 11% Private Sector 40%
voluntary sector – making it, proportionate to its size, the highest of the three sectors.
“I thought the advice and the adviser were both brilliant” P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 1 0
The Helpline - Continued
HOW CLIENTS KNOW ABOUT US
The significant developments here are
that we are now getting referrals from the workplace (be it through employer’s
policies or unions) and from regulatory
Employer/ union 13%
and public authorities. While we welcome personal recommendations, we recognise that it is not the most effective way to promote a national helpline.
PCaW/Client/ friend 11% Others 7%
A C T I O N TA K E N 12% of clients contacted us before they had raised the concern - a decline over recent years which may be because the legislation has itself given people more confidence to raise concerns themselves. Of those clients who had already blown the whistle, 89% had done so to the employer, 10% had contacted the regulator and 1% had made a wider disclosure (media/police). This trend is
Had contacted employer 89%
consistent with our own approach and that of the legislation, namely to encourage internal whistleblowing where possible. It is also notable that one third of those clients who had blown the whistle
Contacted us before raising concerned 12% Contacted regulator 10%
contacted us to discuss the response to the concern, rather than to report any victimisation or reprisal.
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Had made a Wider disclosure 1%
The Helpline - Continued
C L I E N T S AT I S FA C T I O N We rang all those who had left contact details up to three times seeking feedback on our service. We successfully contacted 229 clients and they all agreed to give feedback. The results were that: 96% said the advice we gave was clear 85% said they would recommend us 78% said the advice was helpful 71% said they followed the advice While the feedback remains overwhelmingly positive, there has been a slight fall in satisfaction from the previous 5 year averages where the recommendation rate was 91% and where 86% of clients found the advice helpful. From the responses to open questions, this fall appeared to be linked to the increased number of callers who mistakenly expected us to provide free legal representation for them. The quotes at the bottom of the pages of this report were from thank you letters or were views expressed during the feedback surveys.
“Public Concern at Work was my lifeline” P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 1 2
Cases from our files
Pocketing the Money
Too Close for Comfort
Charity Begins on Holiday
Case Note 1: Pocketing the Money
FA worked as a care assistant in an old
We advised that he should bite his lip and
people’s home. He and some of his
deal with these allegations squarely.
colleagues were worried that SM, one of
Although the investigation found they had
the managers, might be stealing cash from
no substance, the owners decided to
transfer FA to another home. FA was very unhappy and rang us again.
SM, who looked after their pocket money, kept a ledger of when sums were paid out.
We helped him draft a letter to the owners
FA was fairly sure that money was
explaining that he wanted to stay at that
recorded as being given out to particular
home and that transferring him after he
residents when they had received none.
had blown the whistle would give out the
After a while, he thought he had to raise
wrong messages to other staff. The owners
the concern as the amount involved was
reconsidered and FA stayed at the home.
adding up. When FA rang to tell us that SM had been After he raised his concerns with the
convicted of stealing £1400 from the
owners of the home, an investigation
residents, he said the atmosphere in the
quickly found he was right and SM was
home was now much improved.
dismissed and the police were called in. Relations within the home were tense as some of SM’s friends strongly objected to the whistleblowing. Within weeks, FA was suspended over allegations that he had mistreated the residents. He rang us.
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Case Note 2: Hard Men
JM was the personnel manager for a
If he wanted to stay with the firm and
successful family-run engineering firm.
deal with the issue, we advised the best
To help with its expansion plans, it had
way was for him to raise the concern with
recently raised investment capital.
the family directors. By referring to the fact that staff were talking about it and the
When in the past the directors had put
risk that they might report the
through the books some private work
wrongdoing elsewhere, he could help the
done on their own homes, JM had let it
family see why the private works should be
pass as it was a family business.
stopped. As this approach made his role part of the solution, it was unlikely he
Two employees had recently told him that
would be victimised.
the scale of these private works was now reaching new heights. JM was worried
If the malpractice continued, we would
about this and doubted that the non-
then discuss with him what other options
executive directors the new investors had
there were. We explained that if he lost
put on the Board would approve. He
his job, he would be protected by PIDA.
thought something should be done but
However, this meant he would be fully
knew that the directors had a well-earned
compensated - not that he couldn’t be
reputation as hard men in the local
sacked. The other option was for JM to
community. He feared that if he said
find a new job and then decide whether
anything to the non-executive directors
to raise the concern himself. Thankful for
he would lose his job or something worse
the advice, he took the second option.
might happen. Not surprisingly, the dilemma had undermined JM’s commitment to the firm. He rang us for advice.
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Case Note 3: Witness Dismissed
JB was one of several pharmacists at a
his solicitors dismissing her. They claimed
chemists in a small town. Her boss owned
that if she continued to work there, her
the shop and was himself a pharmacist.
boss could also be charged with
Part of his work was to claim rebates from
interfering with a witness. JB rang us.
the NHS for the drugs prescribed. We contacted the NHS prosecutors and Occasionally the NHS would ring to check
the appropriate authorities and explained
one of prescriptions and when her boss
that this practice could only thwart their
was not there, JB would answer. More
efforts to tackle workplace fraud. We
often than not she would realise that some
suggested that to avoid this they should
error had crept into the paperwork which
seek to attach bail conditions which would
favoured the pharmacy. She would put
reduce the risk that witnesses would be
this right and then politely point it out to
her boss. The errors kept on being made and whenever the NHS asked JB she
As to JB’s case, we advised her to bring a
would deal with it honestly and fairly.
PIDA claim and put her in touch with lawyers willing to help ensure she got
One day when the boss was away two NHS
proper compensation. We also advised her
investigators called in to the shop and
how to approach future employers and
asked to meet JB to go through some of
before long she had another job.
the rebates claimed. She agreed to meet them and told her boss. After the interview, at the request of the investigators, JB made a formal statement. Again she told her boss what was happening. Some weeks later he was arrested and charged with fraud. The next day she received a letter from
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Case Note 4: Informing Policy
GB had worked for many years as a
GB was alarmed that Government policy
scientist for a firm of research consultants.
might be built on such an error and
While the firm was working on a key
thought something had to be done. She
project to inform Government policy on
wrote in confidence to the civil servant
energy efficiency, GB was asked to review
running the project, pointing out that the
related scientific research.
piece of research should not be relied on without some independent corroboration,
In the course of her review, she discovered
which could be easily sought.
that in an influential piece of research, a colleague’s conclusions had
A week later GB was dismissed as the civil
misinterpreted the data. The effect was
servant had told the firm about GB’s
that the facts did not support the
confidential letter. GB rang us.
conclusions. GB raised this with her manager who said they would look into it.
We advised GB that she had a claim under
She then heard that another colleague was
PIDA and also against the Department for
unhappy with the analysis.
breach of confidence. We helped her bring a PIDA claim and settle it whilst
GB knew from colleagues that there was
ensuring that the suspect research was
real pressure to complete the Government
dealt with properly. GB has since returned
project as a ministerial announcement was
due soon. When she asked her manager whether the suspect research would be used in the Government report, she was left with the distinct impression that it was none of her business.
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Case Note 5: Too Close for Comfort
AM was a residential social worker in a
AM contacted us when he learned that the
children’s home. He grew increasingly
investigation had finished and that PE
concerned that a colleague PE seemed
would be returning to the home. He and
to have developed a close relationship
colleagues were worried that this was not
with a 12 year old girl in the home.
the right decision.
Colleagues and some of the children joked that PE was becoming rather infatuated
We advised him to contact the Council’s
with the girl.
head of child protection and explain his concerns. However, we pointed out it was
During a holiday trip, AM was alarmed
the Council’s job to decide what action to
that PE insisted that the girl should travel
take and that what mattered was that the
in his car alone with him and that he
Council felt sure that PE was not a risk.
spent a lot of time with her during the
We also said that the fact that PE was
holiday. AM raised the issue with PE who
returning to the home did not mean that
just laughed it off.
no action had been taken.
On return from the holiday, AM decided
After discussing the matter with the
with a colleague that they should raise
Council, AM felt happier with its decision
their concerns discreetly with the Council.
as he knew the Council would be keeping
They were told they had a duty to report
a watchful eye over the home and that
them formally. When they did, an
staff would be reminded of the
investigation was launched and PE was
given special leave and told to stay away from the home.
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Case Note 6: Cut-throat Competition
DA had worked for 8 years as operations
During our next discussion, we realised
manager for a specialist food company. In
that DA was reluctant to write such a letter
the last year the man who founded the
and was very keen that the authorities
business had retired and his son had taken
should take action. We asked more about
over. The son was keen to expand the firm
the nature of the market and what DA
and wanted to take on its main competitor
now did. It transpired that she had left the
and also see off a former colleague who
firm to join her former colleague’s
had just entered the same market.
business which had just entered the same market. We pointed out that she had not
One day the son gave DA a file with all
been candid with us from the outset and
the main competitor’s key client
discussed the options she had as a player
confidential information. DA was told to
in a competitive market. We said that her
contact all their clients and undercut their
new firm’s lawyers would be better able to
prices. DA objected and was told that if
advise her on the risks and opportunities
she didn’t like it, she could go. She raised
for reporting a competitor.
her concerns at the management meeting to no avail and then decided to leave. She rang us six months later asking what she could do. As DA had a new job, her only concern was to stop the malpractice. We discussed the various options with her, including the competition authorities and the data protection office. Our initial advice was that she should write to her former employer setting out her concerns about their misuse of a competitor’s information and the risks they were taking.
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Case Note 7: Charity Begins on Holiday
The Director and a senior colleague left a
issues with other members of staff other
community resource project to take up
than the Deputy Director; and
new posts in the charity world. In
discourteous behaviour.” Two weeks later
replacing them the project recruited a
at her disciplinary hearing she was
finance officer, CM, who had much
dismissed for gross misconduct. She then
experience in the area and asked the
deputy director to be acting manager until funds were obtained for a new post.
We discussed all the options with her, as to her own position and the concern.
Not long after joining, CM discovered
Though she was very hurt by what had
that the two former staff had drawn and
happened, she felt the project was good
signed cheques to one another for almost
and was keen to stay and try to sort out its
£1000 apiece. While these were listed as
finances. If things did not improve, she
outstanding holiday pay, CM was troubled
would seek another job. We helped her
that no deduction had been made for tax
bring an internal appeal against the
or national insurance and there was no
dismissal explaining what had happened
indication the payments had been
and mentioning the new law. This was
authorised. To try and sort the issue out,
successful and she returned to her post.
she asked a colleague for their holiday records but was concerned that large sections had been encrusted with Tippex. CM raised the issue with the Deputy Director and dropped him a short note to say she awaited his instructions. The next day CM was suspended for “malicious mischief resulting in danger to fellow employees; reading personnel records without prior consent; discussing these
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Case Note 8: Media Madness
For five years KD had helped run a
Council. When KD was suspended for
Council recycling project. When her boss
gross misconduct, her immediate response
was on holiday, she came across several
was to deny her involvement. Distraught,
sacks of patients’ records which had come
she then rang us.
from the local hospital. She rang them up and the bags were collected that day
KD, who had a fine work record, liked
without a by-your-leave. A few odd records
her job and desperately feared losing it.
were left behind which KD locked away.
Although she had a sound claim against
She left a note for her boss, hoping that
the BBC and the Council if she lost her
the hospital would send a word of thanks.
job, the strategy was to make this
unnecessary. We advised her to come clean with the Council and helped write
A few weeks later, the project had an open
them a letter. With the support of her
day for the media. When a BBC journalist
union and our help, the Council
asked KD if anything interesting came
understood what had happened and
through the project, she mentioned this
allowed KD to keep her job.
incident. The journalist got very excited and leant on KD to show him the remaining records, emphasising the public interest. This and a promise of confidentiality overcame KD’s reluctance and the journalist copied the few remaining records and ran the story on the evening news. Shamed, the hospital publicly apologised for the incident and asked the journalist for the records back. In breach of his professional rules and his promise, the journalist revealed that KD had them. The hospital complained to the
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Help for Employers
The main thrust of our efforts to promote legitimate whistleblowing is our work with employers. By helping them to instil the right attitude in the workplace, not only does the organisation itself benefit but staff better understand the purpose and benefits of such a policy. We also work with regulators, unions, professional bodies and advice agencies on complying with the new law to help those they work with. For further information about these services, please call on 020 7404 6609 or contact [email protected] T H E P O L I C Y PA C K Our Policy Pack is a compliance toolkit which is seen by many as a benchmark for whistleblowing. The National Health Service has supplied it to over 500 Trusts and health authorities in England and Wales. In the private sector, the Pack has been used by organisations such as BAe, British Gas, Camelot, Clifford Chance, HSBC, Nuffield Hospitals, PriceWaterhouseCoopers, Rio Tinto, Rolls Royce, Shell, Standard Life, Unigate and Whitbread. Over two hundred and fifty public authorities such as the Audit Commission, the Department for Education & Employment and the Financial Services Authority use it to guide their own work in this area. Through the offices of CIPFA, the Pack has been widely distributed in local government. TA L K S A N D C O N F E R E N C E S Our staff have spoken at conferences organised for the banking and insurance industries, the medical, legal and accountancy professions, unions, co-operatives, auditors, personnel societies, scientific associations, law firms, academic institutions, royal societies, voluntary groups and for individual businesses. Central government departments - including the Treasury and the DTI – also use these services.
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T H E P O L I C Y PA C K
“An excellent guide – all other sources of information seem to be looking at this topic entirely from a legal point of view” Personnel Manager, NHS Trust
“Gave assistance in writing a policy in plain English that could be understood by all levels of staff ” Compliance Manager, HSBC
“The Pack is extremely useful and will help ensure that good practice is followed” Head of Central Services, London Borough of Ealing
O U R TA L K S & C O N F E R E N C E S
“Excellent. Highly relevant. A number of profound thoughts and insightful concepts were put forward by the speaker” Head of Internal Audit, Cable & Wireless
“All in all a most successful morning, and we as an industry are now much wiser” Association of British Insurers
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Help for employers - Continued
TRAINING We have provided in-house training for the Audit Commission, the Financial Services Authority and for several NHS Trusts. We have also provided open training courses for regulators on how the Act affects their work, and for public authorities and businesses across the UK. These courses range from help on how to introduce and implement effective whistleblowing policies to intensive workshops on how to handle whistleblowing concerns. C O N S U LTA N C Y We produced a Boardroom Brief for clients of AIG, the world’s largest insurer. We were appointed special advisers to the European Commission on its new staff rules on whistleblowing. We helped the public service union, Unison, draft Speaking Out Without Fear, a practical guide for their members and representatives on the Public Interest Disclosure Act. We were commissioned by Abbey National, Argos, the British Council and the National Lottery Charities Board to help with substantial reviews of their policies on governance, transparency and whistleblowing. Following anonymous disclosures at NIREX and Royal Brompton Hospital, we were asked to review their procedures and make recommendations on how such incidents may best be avoided.
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On OUR TRAINING “Thoroughly enjoyed it. Will certainly be better equipped to undertake my duties” Senior Personnel Manager, Intervention Board
“The training was excellent and has proved very useful back in the workplace” Policy Officer, Occupational Pensions Regulatory Authority
“The highest ratings we have ever had at any event” Capita Conferences
O n O U R C O N S U LTA N C Y “We chose PCaW because their approach fits our emphasis on internal communication and openness. We believe their practical help and confidential advice is exactly what is needed to reassure everyone at Argos of our commitment to ethical conduct” Company Security Manager, Argos
“I would like to record our appreciation for your very valuable advice on this particularly sensitive project. I feel that your overall approach, concentrating on lessons to be learned but without glossing over any findings has been very helpful.” Managing Director, Nirex
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Legal Decisions Under The Public Interest Disclosure Act A ) TA K I N G C A R E Within months of starting a new job at a care home A, an experienced nurse, had genuine concerns about the standards of care. When he tried to raise them with the Managing Director’s PA, he was asked to put them in writing and told they would be dealt with on return from holiday. As the problems continued, A rang the Social Services Inspectorate (SSI) 9 days later. They inspected the home and found most of his concerns substantiated. A was then disciplined and sacked for breach of his professional duties. A brought a PIDA claim.The tribunal held that A’s internal and external whistleblowing were both protected. Even though a short time had elapsed before he contacted SSI, his actions were reasonable because of the nature of the concerns and as the home had no whistleblowing policy. A, who had found another job, was awarded £23,000. B) NO RELIEF B, a care assistant, was dismissed shortly after contacting Social Services Inspectorate (SSI) with concerns about the treatment of a resident. She had not raised her concern internally because it had simply not occurred to her. B brought an urgent claim for reinstatement under PIDA. The tribunal held her claim failed as she had not raised the concern internally and had no good reason for not doing so. (NB If the SSI had been prescribed under PIDA, the result could have been different)
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C ) D O U B L E S TA N D A R D S C was finance officer for a subsidiary of a US telecoms company. In 1997 when C had told his contact in the US about large and suspect expenses claims made by his Managing Director, he was told to turn a blind eye. In late 1999 when the Managing Director’s expenses had exceeded £300,000, C raised his concerns with the US Board. He immediately found himself under pressure to leave and when C refused to resign, he was disciplined and dismissed for authorising the MD’s expenses. C brought a PIDA claim.The Managing Director remained in post until C had won his claim for interim relief. At the full hearing the tribunal decided that complaints about C were a smokescreen and that he had been sacked for whistleblowing. As C was 58 and unable to secure similar work, he was compensated for his losses of £293,000. D) POOR SHOW D was on probation as operations manager at a freight company. After his boss warned him about growing operational problems, D went to the regional director. D was sacked the next day after his previous employers had detailed their problems with him. D then wrote to his Managing Director saying he had been sacked after telling the regional director about dishonest and corrupt practices. The regional director denied this had been discussed. D brought a PIDA claim. The tribunal found D was sacked for poor performance and made a £500 costs order against him. E ) N O T TA K I N G S T O C K E was a tyre fitter. He was responsible for stock at another depot. After a break-in at that depot, E believed no stock had been taken. E then heard that his boss planned to set some other losses off against the break-in. E gave compelling evidence of this to his regional director, who told E’s boss about his concerns. After he was coldshouldered by colleagues and ignored by managers, E resigned. He brought a PIDA claim.The tribunal found for E as the regional director had failed to show him support. It stressed employers must make it clear to staff that there are no adverse repercussions for bona fide whistleblowing. Compensation to be agreed or decided.
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PIDA at Work
LEGAL DECISIONS In the previous section, we summarise five of the early PIDA decisions. So far the Act appears to be being applied in tribunals as Parliament had intended. More information about PIDA cases can be found on our website: www.pcaw.co.uk/news OPEN JUSTICE, CLOSED GOVERNMENT Decisions under PIDA, however, are a misleading indication of how the Act is working in practice. Tribunals only hear cases where whistleblowing has gone wrong and where the parties have been unable to settle their differences. For this reason we were and are keen to monitor the nature of claims being brought under PIDA. This provides valuable information about the nature of the wrongdoing, whether the employee had raised the matter internally, whether the claimant alleged breach of other employment rights and about the nature of the victimisation. As our request for access to public records about PIDA claims was denied by the authorities, we challenged their decision in the High Court. Applying the rules that governed employment tribunals, the Court found in our favour concluding that “it has always been the policy of the law that, so far as possible, litigation should be conducted under the public gaze and the critical scrutiny of all who wish to report legal proceedings.” The Government’s response to this decision was in our view regrettable. Without consulting interested parties and without any public announcement, it changed the relevant statutory rules while Parliament was in recess. Details of this episode can be found on our website (address above). As our view remains that this secretive approach conflicts with public policy, we will press for it to be changed - be it by Government, Parliament or the courts.
“PCaW needs more publicity, whistleblowing needs to be socially acceptable” P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 2 8
ho ha dr esp on de dt ha t“ the reg ula tio ns do no t se em
av ery att rac tiv ew ay of pro cee din g.”
PIDA at work - Continued
RESEARCHING PIDA As the Department of Trade & Industry has not been able to include PIDA in its research programme into employment laws, it has largely been left to us to research the way the Act is operating. This task has been and will remain all the more difficult if public records of the details of PIDA claims are to be unavailable. PROMOTING PIDA While the National Health Service and the Audit Commission have done much to promote the legislation in their own areas, few steps have been taken by Government to advise employers and the public about the Act and its implications. We believe that Government can and should play a more active role in informing people about the Act. Our concern is that without such an initiative, employees may be unaware that there is a safe alternative to silence and employers (particularly small and medium sized ones) may unwittingly leave themselves exposed to claims. The potential value of such an initiative was clear after the Ladbroke Grove train crash when politicians, pundits and the press called for whistleblower protection, apparently unaware that such laws had been in force for several months.
“Should publicise yourselves better, ACAS did not know about you” P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 3 0
We believe firmly that employers should encourage - and the law should protect - bona fide whistleblowing. With the passing of the Public Interest Disclosure Act, this principle has become an accepted, if not widely publicised, part of public policy in the UK. Over the past two years, we have focussed on encouraging domestic policy makers to heed and build on this approach and on exporting this message overseas. ABROAD With the global economy and with the influence of the European Commission and other international bodies, we have welcomed the growth in overseas interest in this issue and our work. We helped devise, draft and promote South Africa’s Protected Disclosures Act and are delighted that a sister organisation (Open Democracy Advice Centre) has been launched there. We provided guidance on whistleblowing legislation for Thailand, Belgium and Nigeria. We acted as consultants to the OECD where the UK’s legislation was commended by all key interests. The new OECD Guidelines for Multi-National Enterprises include whistleblower provisions and forthcoming amendments to the AntiBribery Convention are also expected to address this issue. We were consulted by officials in the Netherlands on its new whistleblower law and we met with judges, politicians and NGOs in Germany who appear keen to introduce UK - style legislation. Along with American colleagues, we addressed an international seminar in Sweden on whistleblowing and ethics and in the Czech Republic we worked with Transparency International on promoting this issue. Finally we were appointed special advisers to the European Commission on how its own staff regulations should be reformed to deal with internal and external whistleblowing.
“Without people like you, people like me would be lost” P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 3 2
Policy - Continued
AT H O M E The proposed new statutory Code on Grievance Procedures appeared to us to wrongly describe the implications of whistleblowing for employers and failed to take account of the views of Parliament and the terms of PIDA. ACAS moved swiftly to remedy these points before the Code was finalised, so reducing the risk that employers and employees would misunderstand the role of the Act. Our efforts to persuade the DTI to address this problem were less successful. As the only DTI Guidance on the Act was distributed to job centres and advice agencies it is far more likely to help people bring legal claims, than raise concerns in the first place. Equally our suggestions that the DTI should make available practical guidance to small and medium sized employers have so far gone unheeded. Elsewhere in Government, the DETR was keen to see how whistleblowing was working in local government and to discuss the recommendation of the North Wales Child Abuse Inquiry that council workers should be under a legal duty to blow the whistle. We expressed our misgivings about this proposal, cautioning that a duty would do little to create a more ethical environment and that in practice it would likely cause more problems that it would solve. Our papers on the impact of the Human Rights Act on whistleblowing in the UK, and our briefings on the Freedom of Information Bill are available on our website at www.pcaw.co.uk/publications. Our response to the Home Office proposals on Corporate Killing, which is also on our website, explains our fears that the proposals could weaken the laws which presently deter directors from acting recklessly and that, if implemented as they are, they will lead to lengthy and unnecessarily complex prosecutions.
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SCHOOLS We ran a pilot project in four schools to discuss the perceptions of sixth formers toward whistleblowing. This proved very successful, with excellent feedback from both pupils and staff. As one master wrote afterwards “It is clear that a whole group of young people was challenged and provoked…it will have a real and long-lasting influence on all the pupils here.” THE MEDIA The media can and do play a key role in influencing and informing the public debate about whistleblowing and opposite we reproduce some of the editorials that have addressed this issue over the past two years. While there remains a keen interest in the helpline cases, journalists understand that due to the confidentiality of the lawyer-client relationship the information is not ours to disclose. The potential implications of whistleblowing in a range of fields mean that on most days people from the media contact us to discuss issues of accountability, helpline data, the impact of the new legislation or stories breaking in the news. SPREADING THE WORD We speak to a wide range of audiences to explain our work and approach. In the past two years these have included community associations, colleges and professionals. It has been particularly reassuring to discover during our talks to various religious faiths that their core texts recognise and reflect both the principle and practice we espouse. Our reports on how the legislation is working and on the latest cases have been well received by the legal and personnel professions. And in our policy work (detailed in the previous section), we try to explain why a practical approach toward whistleblowing is relevant in a number of different contexts.
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Money & Support
EXPENDITURE Our expenditure over each of the past two years has been some £250,000 pa. Two-thirds of this has been on the salaries of the staff (who are listed overleaf). The first bar chart opposite shows the breakdown of this expenditure by core activity over the last two years. INCOME During 1999 and 2000 our income averaged some £350,000 pa, of which we earned nearly one half as the second chart opposite illustrates. Full details are available on request, in our audited reports. THANKS We thank the trusts, individuals, employers and unions which support us. Without their backing, we would have been unable to get this far. We record especial thanks to the Esmée Fairbairn Foundation, Joseph Rowntree Charitable Trust and Leigh Trust which provided essential funding to the end of 2000. While it is our intention to fund as much of our work as we can from earnings, we will continue to need donations and support over the coming years. S U P P O RT If you know of any individual, organisation or trust which you think might support our work, please send them this report or ask us ([email protected]) to send them one. If you are able to help please do.
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Fundraising Policy Management Advice Education 0k
Interest Donations Grants Earnings
T H E PAT R O N S
Michael Brindle QC, Chairman of the
Our four patrons have all been closely
Board, has a legal practice which focuses
involved in our work. From 1992-96 Lord
on commercial, financial and professional
Borrie QC (chairman of the Advertising
issues. Maurice Frankel, the deputy, is the
Standards Authority) was the Chairman of
Director of the Campaign for Freedom of
the Trustees and Lord Oliver of
Information. Farzana Aslam is a practising
Aylmerton (a former law lord) was
barrister; Rosalie Langley Judd is a
Chairman of the Council. When Director-
manager of Intelligence & Records at the
General of the CBI, Sir John Banham was
Financial Services Authority; Martin Le
closely involved in the preparatory
Jeune is a director of Fishburn Hedges;
research on whistleblowing. Sir Ralph
Michael Moore CBE chairs a number of
Gibson (a past chairman of the Law
quoted companies and Which?; James
Commission) chaired the Council from
Tickell is the Assistant Chief Executive of
1996 to 1999.
the National Housing Federation and Marlene Winfield OBE is Head of Patient
and Client Records at the NHS
The members of our advisory Council
are our patrons and Gerald Bowden, John Bowers QC (Hon Legal Adviser), Steve Burkeman, Tony Close CBE, Dr Yvonne Cripps, Jo Cutmore, Baroness Dean, Zerbanoo Gifford, Lord Gladwin CBE, Edwin Glasgow QC, Lord Goldsmith QC, Roger Jefferies, Graham Melmoth, David Owen, Chris Price, Anthony Sampson, Dr Elaine Sternberg, Dr Marie Stewart and David Wellings.
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T H E S TA F F
Guy Dehn, the Director, is a practising
We offer our best wishes to the following
barrister. Our legal officer, Anna Myers, is
who have moved on from the charity
a practising solicitor and Caroline Millar,
during these two years and we thank
our company secretary also runs our
them for their help. John Healey MP
administration and services. Lynne
and Ole Henriksen from the Council.
MacMillan is managing our Scottish pilot
We record our thanks to Deborah Annetts,
project. Florence Adams is office
Andrea Eaves, Giles Desforges, Karen
administrator. The legal caseworkers
D’Rozario, Philip Ells, Chidi King, Kathy
(all have been part-time) are Georgina
MacMahon, Wyn Pyper and Nicola Walker.
Brown, Emma Phillips, Ben Urdang and Josh Winfield. We have two volunteers: Caroline Khazai-Nejad and Jean Brown.
“I would wholeheartedly recommend your services – you deserve further support from your sponsors”.
P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 4 1
Allen Lane Foundation
Esmée Fairbairn Foundation
Joseph Rowntree Charitable Trust
AIG Europe (UK) Ltd
FB Lawrence Trust
ASRA Housing Association
Association of British Insurers
Scurrah Wainwright Trust
Audit Commission BARQA BBC
K E Y S U P P O RT E R S
British Bankers Association
C F Dehn QC
Criminal Cases Review Commission
Dept. Culture, Media & Sport
Dept. Environment, T & R
Dept. Trade & Industry
Dudley Priory NHS Trust
W Sussex County Council
European Commission Financial Services Authority
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Gateshead & S Tyneside NHS Trust
Princess Alexandra NHS Trust
Reliance Security Services
Health & Safety Executive
Royal Brompton Hospital Inquiry
Industrial Relations Services
Institute Health Care Management
Law Society National Lottery Charities Board Magistrates Courts Central Committee
P O L I C Y PA C K D I S T R I B U T I O N
550 NHS Trusts and Authorities
Mid Devon District Council
303 direct sales
Ministry of Interior, Netherlands
248 local authorities
National Australia Group
100 Industrial Society members
42 Government departments & agencies
Norfolk & Norwich NHS Trust OECD OPRA Pennon Group PriceWaterhouseCoopers
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Public Concern at Work receives no state aid. We cannot operate without your help. Please promote our message, refer to our helpline and use our services: [email protected]
If you can make a donation or leave a legacy, you will help us to make a lasting difference: [email protected]
P U B L I C C O N C E R N AT W O R K : P O L I C Y I N T O P R AC T I C E PA G E 4 4
ss. role f the g progre o w e n i vi secur gist’s polo to play in o r h t e an s an d continu cord e n r a t ien yed ful cl e pla grate r like hav a from nd thei card a This blowers le t s i h w
Strategy in action
L A U N C H S T R AT E G Y S E T E A R LY 1 9 9 3
P R O G R E S S R E P O RT A S AT E A R LY 2 0 0 1
To promote the positive role of whistleblowing and counter its pejorative meaning.
Whistleblowing increasingly seen as benign or a necessary fail-safe. Pejorative meaning has been checked in the public sector.
To encourage people – particularly those at work – to question or challenge dangers or threats to others in a constructive way.
Over two-thirds of clients say they follow our advice. More generally some progress but difficult to quantify impact as other factors involved.
To give free confidential help to people concerned about serious malpractice at work.
We have handled some 2200 serious concerns, with 89% of clients recommending us.
To promote legislation to protect public interest whistleblowers.
Achieved with the Public Interest Disclosure Act.
To encourage business to view whistleblowing as welcome and positive.
Good progress, evidenced by business support for and present lack of criticism of the Act.
To persuade employers to set up safe whistleblowing policies and to promote them actively to their workforce
Fair progress in private and vol. sectors, and good results among public bodies (through Nolan). Many policies are minimally compliant and promotion poor.
To establish Public Concern at Work (PCaW) as independent experts and an authority in this area.
Welcome recognition of PCaW among policy makers at home and abroad is outweighed by low public awareness.
To encourage insurers to offer discounts to organisations which implement effective whistleblowing policies.
First signs of progress in 2000 as major insurer, AIG, promotes the issue to its clients.
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PLANS AND PRIORITIES TO 2005 The issue now speaks for itself. Media use of the word still can cause some discomfort but this appears to be easing.
Explain impact of issue in and outside of workplace. Also take initiative to small firms, schools, colleges and local groups.
Try to maintain quality of helpline. Promote it in workplaces for use as early warning/dispute avoidance.
Monitor the Act in practice and review its terms. Support those promoting the issue overseas. Be alert to any problems in practice. Emphasise Act’s wider self-regulatory potential to HMG and all relevant interests.
Offer three levels of practical, valuable support so employers of all sizes can promote and sustain the right attitude across their organisation.
Must be creative and opportunistic to raise levels of public awareness. Establish office in Scotland.
Build on this interest and encourage others across the industry.
This report was generously designed by Rufus Leonard and Simulate Printed by Russell Press