Freedom to Care Promoting Public Accountability Protecting freedom of speech in the workplace
NHS Exposed The Truth Behind The NHS
ward 87 The Forgotten Grave of North Staffordshire NHS Trust
Freedom to Care Promoting Public Accountability Protecting freedom of speech in the workplace
NHS Exposed The Truth Behind The NHS
ward 87 The Forgotten Grave of North Staffordshire NHS Trust
In 1990, Graham Pink was fired for highlighting patient abuse in the NHS; now, Karen Reissmann has suffered the same fate. It seems little has changed on whistleblowing in nearly two decades, they tell Tash Shifrin
Karen Reissmann says if something is wrong you should not turn a blind eye
It is not the first time that Karen Reissmann has heard former Manchester nurse Graham Pink describe his experience as an NHS whistleblower. More than 15 years ago, she heard him tell a Unison trade union conference how he had been sacked after writing a string of passionate letters decrying the understaffing on his geriatric ward at Stepping Hill hospital, Stockport.
Pink wrote to everyone: the hospital bosses, the health authority, the health secretary, No 10 and, finally, the press, when he went public on the pages of Society Guardian in 1990. The landmark whistleblowing case brought to light the inadequate care that elderly patients were receiving, but Pink was dismissed in 1991 for "breaching confidentiality". The NHS trust settled his case just ahead of an industrial tribunal verdict.
Now, however, it is Reissmann - also a Manchester nurse - who has been sacked after speaking out about the way the NHS is run. And Pink, vigorous and still impassioned at nearly 80, is lending his support as she takes her case against Manchester Mental Health and Social Care trust to tribunal.
Reissmann, a community psychiatric nurse for 25 years and chair of her Unison union branch, was sacked in November on four counts of gross misconduct. The trust found that she had brought the trust into disrepute by criticising, in an interview given to a Manchester-based social enterprise magazine, the transfer of NHS work to a voluntary organisation.
The other three charges were for telling people that she was suspended, protesting her innocence, and allowing the press to print information about her case. A fifth charge of misusing time was dropped. The trust did not think Reissmann was a bad nurse, however. On the day she was suspended last year, she received a letter confirming her promotion to senior nurse practitioner.
Pink and Reissmann share a passionate conviction about the importance of speaking out about things they see as wrong, but - a generation apart - they have found themselves battling on slightly different territory.
Pink first trained as a nurse when he was called up for national service in 1949 and joined the navy's "sick berth branch". After further training, he then worked as a nurse in England and Canada for a short time before switching to teaching, his original choice of career. It was not until he had retired as a teacher that he went to work at Stepping Hill.
He was shocked at the treatment patients were receiving on understaffed wards at night. "We were not only neglecting them, we were abusing them - unintentionally, of course," he says. "When an elderly lady has to defecate in her bed and lie there in her own excrement for half-an-hour, this is appalling, sickening to me - and it certainly was to her. This is the sort of thing that was happening.
"There were just not enough staff; I was appalled at what I saw. I stuck it for two years, without doing anything except talking to my colleagues, talking to management." But finally, he says, "I felt something should be done".
Pink says that the fact he had returned to nursing after a break gave him a "fresh eye", seeing the conditions that his colleagues had perhaps become accustomed to. He adds that the fact that he did not actually need the work, having his teachers' pension, made him freer to act than his colleagues, most of whom had dependent families and feared for their jobs. "Maybe I was in a more fortunate position that I could speak out and they couldn't."
Graham Pink says he is disappointed that things have changed so little When Pink started writing his letters, some offered to sign them. But he says: "I thought, well perhaps not, it wouldn't be fair." In case of repercussions, Pink took the burden on himself, although he "didn't think for a moment that there would be any comeback, that I'd be kicked out in the end".
There was nothing in Pink's background to suggest he would find himself at the centre of a political storm over care in the NHS. "I didn't have any history of being bolshie," he says. "I'd been in the teachers union, but not for very long. I had no association with unions, no industrial experience. I wasn't a leftwinger, a right-wing, centre-wing or fly half."
Reissmann, however, is a committed socialist and activist who became a union rep three months into her student nursing course in 1982. In the months before she was sacked, she had been leading a campaign - including two days of strike action - against a service reorganisation that union members felt would leave too few staff to deal with a large number of clients.
In August, two months after Reissmann was suspended, the trust accepted that client numbers were higher than it first thought and put in extra staff.
She remembers Pink's case well - "It was in Manchester, so it was local and it was very big news" - and she recalls discussing the case with her mum, who was a geriatric nurse. "To find someone who isn't a trade unionist or politically active so badly treated for standing up . . . I was very impressed at that strength of character," she says.
Like Pink, she says: "I think that's something that I did feel very strongly - that if something's wrong, you shouldn't just turn a blind eye."
She recalls being a student nurse on her first ward, where two elderly patients were asked to sit on commodes in front of each other, "and I remember saying, 'This is not right,' and people saying to me, 'But you're a student nurse. You have to keep your mouth shut.' I said: 'I can't do that.' I did open my mouth from the beginning, and I became a union steward from the beginning."
Her case centres on comments she made in a December 2006 interview given in her capacity as chair of her union branch. Reissmann criticised the transfer of NHS services to voluntary sector providers, citing an assertive outreach team helping people in the community cope with mental illness. "They had paid less, significantly less, to the nurses in that team and they didn't get the nurses' pension. So you had a significant loss financially if you applied for a job with them, which meant that experienced nurses who were likely to be on a better grade didn't apply for the jobs."
Reissmann's comment that "experienced NHS staff have been replaced with inexperienced staff" because of the difference in pay sparked a complaint by the voluntary group to the trust - and then led to her suspension.
In fact, a 2004 report on community mental health services by trust managers, medical consultants and others noted that there had been "worrying" serious incidents and recommended that the team's staff be seconded as NHS employees in future, along with tighter management by the trust. Trust executive Sheila Foley confirms that staff at the project are now seconded NHS employees, a change put in place before she joined the trust in April last year.
Impact on service
Reissmann says: "It was also a point of view that Unison and myself had made previously over the past five years. It wasn't new whistleblowing." Where Pink highlighted specific conditions affecting individual patients, Reissmann says she was criticising "a policy that has an impact on service".
It is because of this that Reissmann's supporters see her sacking as an attack on NHS trade unionists' right to speak out about the way the health service is run. Unison has thrown its weight nationally behind the case, and MPs of all three main parties have signed an early day motion in her support.
Reissmann's colleagues staged 14 strike days across the trust when she was suspended, and 130 community mental health staff went on strike for more than five weeks when she was sacked.
She says: "People were outraged when I was suspended and people did feel it was because I speak out. I'm a vocal advocate for nurses, for mental health care workers and a good union representative. But I also stand up for services and my union branch has been very good at doing that. People felt that by suspending me they were trying to take everybody's voices away."
The trust would not discuss a "private employment matter", but Foley says: "The trust is confident the employment tribunal will uphold its decision to dismiss her."
Pink found out about Reissmann's case in the local papers and got in touch through friends at his computing class, who mentioned her by chance, not knowing Pink's background. He says: "I can see echoes of what's happened to me very much - she's been put through the wringer like I was. I get the feeling that because she was a union official, they've made a meal of her."
He is disappointed that since he and a small number of other health workers became whistleblowers in the early 1990s under the Conservatives, things have changed so little. "A lot of people said, 'Ah well, wait till a Labour government gets in. It'll improve.' But I don't know now, seeing the things that are going on, that it has improved. And I think that's rather sad."
The veteran whistleblower knows what Reissmann is going through as she battles to get her job back. He says: "If we don't support Karen and give her all the backing that we can - and, if possible, get her back into her job - then who's going to be next? It really is a case that needs defending up to the hilt."
Whistleblowing speaking out about wrongdoing in the workplace can help support regulations to safeguard care service users, particularly vulnerable adults. Care staff play an important role in reporting abuse, says the Ann Craft Trust. Director Deborah Kitson looks at how managers can create an environment where whistleblowing is positively encouraged.
In response to the Public Interest Disclosure Act 1998, most employers have developed whistleblowing policies to enable workers to raise concerns. However, little is known about how whistleblowing legislation interacts with adult protection procedures, nor whether it is succeeding in protecting staff and the people with learning disabilities they work with.
Blowing the whistle can help protect adults with learning disabilities from abuse but doing so can have a profound impact on the whistleblower and on wider relationships within a care setting.
The way in which whistleblowing incidents are perceived and managed in the workplace makes a huge difference to the experience of care staff. Support, protection and feedback for the whistleblower are crucial. Almost all care providers now have whistleblowing policies to allow staff to raise concerns, but the implementation of these policies varies widely. And whistleblowing is sometimes regarded negatively, so people may be reluctant to identify themselves as a whistleblower and therefore may not access the protection and support offered by a whistleblowing policy.
An Ann Craft Trust research study makes a number of recommendations about implementing an effective whistleblowing policy, supporting staff who blow the whistle and building a positive and open culture.
Changes in organisational culture are often necessary so that workers can speak out without fear of reprisal and feel confident that their concerns will be listened to. Whistleblowing policies need to make whistleblowers fully aware of the potential effects of when a concern becomes formal. Explicit detail is needed on what the process will entail and what support, safeguards and feedback whistleblowers can expect once they have spoken out.
The policy needs to cross-reference to adult protection policies and to the Public Interest Disclosure Act 1998, and should include a clear statement of the circumstances under which it is acceptable to share confidential information in order to report abuse. A clear distinction needs to be made between whistleblowing, complaints and grievances, and alternative procedures offered for the latter two categories.
Sources of support
Workers need information on sources of advice and support before reporting their concerns, particularly if they are not comfortable with discussing these concerns with their line manager, or have already done so but received no satisfactory response.
Managers and other people who receive whistleblowing reports need to have knowledge of the Public Interest Disclosure Act 1998 to ensure that a worker who has blown the whistle in good faith does not suffer detrimental treatment.
Whistleblowing needs to become integrated into wider philosophies of good practice and codes of conduct in care. Poor practice must be challenged and addressed before becoming entrenched and escalating into more severe forms of abuse. Managers and senior staff play a key role in fostering an open culture that encourages everyone to question and discuss care practices through regular supervision and team meetings.
Social care workers have an ethical and professional duty to speak out about abuse and poor practice in the workplace and, under current legislation, employers have a duty to support and protect staff when they raise genuine concerns.
The Ann Craft Trust study confirmed that whistleblowing is a vital part of protecting vulnerable adults but it continues to be an emotive and difficult issue. Implementing policies and procedures is only part of the solution. Safe services can only be developed where the organisational climate is such that workers can speak out without fear of reprisal and where they have the confidence that their concerns will be listened to.
The Ann Craft Trust aims to safeguard vulnerable people. In 2005 it published the research report Blowing the whistle on abuse of adults with learning disabilities, looking at the importance of whistleblowing in social care settings. Find out more at www.anncrafttrust.org
For advice on compliance with safeguarding regulations, visit the Independent Safeguarding Authoritys website at www.isa-gov.org
BSI British Standards and the independent body Public Concern at Work have just published new guidance to reduce confusion about an organisations whistleblowing arrangements. PAS 1998:2008 Whistleblowing arrangements Code of Practice can be downloaded from www.pcaw.co.uk/bsi or www.bsigroup.com/PAS1998
IS WHISTLEBLOWING WORKING IN THE NHS?
Background to Whistleblowing in the NHS
Analysis of calls to Public Concern at Work's helpline from health sector workers
Public Concern at Work's Summary of Cases under PIDA
UNISON and the Duty of Care
CHI: Emerging Trends from 175 Clinical Governance Reviews
For a copy of the survey questionnaire and/or survey results please contact Public Concern at Work on 020 7404 6609.
EXECUTIVE SUMMARY AND RECOMMENDATION
The public hear about whistleblowing in the NHS when it all goes wrong - either when a public inquiry reveals that staff concerns had been stifled or ignored or when the media report claims that a whistleblower has been victimised.
But with one million staff across the NHS, what is the picture day in, day out? Is there a culture of silence or cover-up in your local hospital? Have things improved at the coalface?
As part of its Duty of Care Campaign, UNISON the public service union, teamed up with the whistleblowing charity, Public Concern at Work, to conduct the first survey of its kind and asked 2000 NHS staff is whistleblowing working?
The key findings are that -
Of those who had blown the whistle on a patient safety concern
These findings suggest that, whilst substantial improvement is still needed, NHS staff are increasingly willing to speak up for patient safety, even at some personal risk. However across much of the NHS it seems that this welcome change is in spite of, not because of, management action or encouragement.
The survey demonstrates beyond doubt the value of whistleblowing and its importance has been underlined by government policy over the past decade. Ministers have demonstrated commitment to making whistleblowing work, and have sought to communicate reassurance on reprisals to all staff. Yet somewhere along the line, this information is not getting through. It appears that where staff are responding to central government policy, too many Trusts are not. This is simply unacceptable. Introducing a whistleblowing policy makes sense and whistleblowing must be promoted across the entire NHS including Trusts, executive agencies, private contractors, and PFI schemes.
Public Concern at Work and UNISON call on the Government to remind all NHS health care providers - public and private - of the need to introduce and promote a whistleblowing policy to their staff
FINDINGS IN CONTEXT
Ninety percent of staff who had a patient safety concern blew the whistle. All raised their concern internally, with two-thirds reporting no reprisal and half stating that the concern was dealt with reasonably. The survey canvassed the views of almost the entire NHS team including nurses, therapists, caterers, IT managers, clerical staff, porters, and scientists. Whether medically trained or not, staff are telling their managers when they think something is going wrong. This is great news for patients. The Government and the public should be proud of the high level of commitment demonstrated by NHS staff. Whistleblowing is beginning to work on the ground and staff are increasingly prepared to take the risk to speak up when it comes to patient safety.
A third of staff who raised a concern reported some form of reprisal or grief. While there is nothing in the data or the responses to suggest that the reprisals were serious or lasting enough to warrant complaint, this is contrary to the new culture of openness Ministers promote, and may well stop some staff from raising concerns. From a patient perspective, the key is that despite the grief, the majority of staff are not deterred and will speak up when the concern is about patient safety.
Half of those who blew the whistle said that, in their assessment, the concern was dealt with reasonably. This is a positive finding showing that in those Trusts, their concerns are valued and valuable. Public Concern at Work know from their helplinei , that it is simply not realistic to assume that every time the whistle is blown there is, in fact, a serious problem. What is important is that each concern is assessed on its merits and that staff are not victimised for raising it. For the 50% of staff who said their concern was not addressed effectively, a whistleblowing policy would have told them where they could have pursued the concern, if they thought that justified.
Making whistleblowing work in the NHS requires a conscious effort - encouraging staff to raise concerns, and considering each issue on its merits. Anything less and patients are at risk. The potential value of whistleblowing in the NHS is massive; for morale, patient safety, and saving public money. Yet it is clear that the public still has to rely on the bravery of individual staff members to take the risks because so many Trusts either do not have whistleblowing policies or keep them secret.
Twenty-five percent of staff say the culture is better now than it was three years ago. At the same time, the majority of staff say their Trust would want them to raise any serious concern which could affect the service and half of these said this would still be the case even if it resulted in bad publicity. Again, this is welcome news. But a third of staff believe their Trust would not want to know about a serious problem affecting services. In light of all the work that has been done at the central level, this is a damning reflection of local culture and requires urgent action. Fortunately, the evidence is that when it comes to patient safety, few staff are now willing to stay silent. But what about other issues?
Staff said they would worry most about raising concerns about unsafe staffing levels, government targets/waiting lists, risks caused by other staff, and a bullying culture. Clinical governance, which is central to the improvement of health care standards, is not just about direct patient care but includes all aspects of health service delivery. This is a view endorsed by the Commission for Health Improvement (CHI) which specifically tests the level of staff awareness of and confidence in whistleblowing during its clinical governance reviews. It is clear that some Trusts are doing it properly, encouraging staff to blow the whistle on anything that might put patients, colleagues or the service at risk. Other Trusts appear to be doing nothing at all.
After conducting 175 Clinical Governance Reviews, CHI highlights staff fears of reprisals if they reported something going wrong as a key emerging trend which causes them concernii. This finding reflects a serious lack of commitment of many Trusts to manage risk effectively - a key component of clinical governance. Government can no longer reasonably rely on those enlightened Trusts who know whistleblowing helps deliver high standards and must drive the message through the NHS.
It is simply unacceptable that fifty percent of staff do not know if their Trust has a whistleblowing policy. This is evidence of a communication breakdown between central government policy and Trusts that mirrors that between so many Trusts and their staff. When the Public Interest Disclosure Act (PIDA) came into force in 1999, the NHS Executive issued practical guidance to all Trusts in England and Walesiii stating that they should implement whistleblowing policies. Since 1993 there have been three separate NHS whistleblowing initiatives. Government commitment, ministerial statements, public inquiries to learn the lessons when things go wrong, are all in vain if 50% of staff do not even know if their Trust has thought about or addressed whistleblowing. Those Trusts who have a policy but have failed to promote it should realise it is not worth the paper it is written on. Public Concern at Work's experience on their helpline confirms that staff are most reluctant to ask about a whistleblowing policy when they have a concern they are worried about raising. The Government needs to ensure that all Trusts and NHS health care providers have introduced a policy and are promoting whistleblowing to their staff.
When a whistleblowing policy was used, no staff reported reprisals and two in three said the concern was dealt with reasonably. Staff are more likely to seek advice from their UNISON representative when there is a whistleblowing policy in place (50%) than when there isn't (33%). These findings suggest that where a whistleblowing policy is implemented and promoted to staff, concerns are more likely to be raised and addressed effectively.
SECTION 1: BACKGROUND TO WHISTLEBLOWING IN THE NHSiv
Whistleblowing in the NHS was first addressed by the NHS Executive in 1993, and then by the Audit Commission in 1994. Its significance was given strong endorsement by the 1995 Nolan Report which observed that the result of failing to provide an effective system for raising concerns of wrongdoing 'is ironically to encourage anonymous disclosures'. Subsequent recommendations of the Nolan Committee (and the Government's acceptance thereof) provided a standard of good practice for whistleblowing policies by the 1997 election. That September, the new Government reminded NHS Trusts of the need to have effective local procedures and of forthcoming legislation on the issue. This referred to Mr Richard Shepherd's Public Interest Disclosure Bill, which - with strong support in and outside Parliament - was enacted in July 1998. The legislation came into force in July 1999 and in September the Department of Health supplied all NHS Trusts with a Policy Pack (produced by Public Concern at Work) which contained practical guidance on the new legislation, promotional material and a model policy. Additionally, UNISON produced a guide to whistleblowing for its members called Speaking Out Without Fear.
By 1997 it was accepted good practice that a whistleblowing policy should include a clear signal of what external disclosures could properly be made, that it should be well promoted and that it should be of a different character from a grievance procedure. By then, an early confusion between confidentiality (where the identity of the whistleblower was known but respected) and anonymity (where the whistleblower did not identify him or herself to anyone) had been clarified.
2 SOURCES FOR THE POLICY
The 1993 NHS Guidance
Published on 5 June 1993 and sent to Trust Chief Executives, this Guidance was the first concerted attempt by a UK employer to address the issue of whistleblowing. While the approach was cautious (in part because there had been some political and protest whistleblowing against the NHS reforms), the Guidance was a welcome development. It stressed that there should be full local consultation on any policy and it set out an option for designated officers as an alternative to raising the issue up the management line. The strong and justified emphasis the Guidance gave to raising concerns internally was, however, coupled with warnings of the risks of making outside disclosures. This and the absence of any clear or safe line of outside accountability led to criticism of the Guidance in and by the media as a "gaggers' charter". Following criticism from the Select Committee on Public Expenditure, the Chief Executive of the NHS wrote on 7 September 1993 to all Trust Chief Executives clarifying that the Guidance does "not prevent staff from seeking the advice and guidance of their MP, as a constitutional right, at any time."
The Nolan Committee: 1st report
The First Report of the Committee on Standards in Public Lifev addressed the issue of whistleblowing in Quangos and the NHS. Commenting of the 1993 NHS Guidance, the Committee noted that the Audit Commission had found that none of 17 NHS bodies they visited had promoted a whistleblowing scheme and that a third of NHS staff they interviewed would not raise a serious concern because of fear of losing their jobs. The then Chief Executive of the NHS, was quoted as recognising that 'a sustained effort is required to ensure that these guidelines are properly carried through, both in spirit and detail at local level'vi.
The Committee recommended that each NHS body "that has not already done so should nominate an official or board member with the duty of investigating staff concerns about propriety raised confidentially. Staff should be able to make complaints without going through the normal management structure and should be guaranteed anonymityvii. If they remain unsatisfied, staff should also have a clear route for raising concerns about issues of propriety with the sponsor department."viii
Nolan and Audit Commission recommendations
In late 1997 the second Nolan Report was published which included its full recommendations on whistleblowingix. The specific points were that an effective whistleblowing system should include:
Public Concern at Work developed a whistleblowing policy checklist which was endorsed by the Nolan Committee and the Audit Commission. In Ensuring Probity in the NHSx , the Audit Commission had recommended that Trust "Boards should periodically review attainment in their organisation of [this] good practice." The checklist included the advice to "Remind [staff] of external routes if they do not have the confidence to raise the concern internally, such as District Audit or the police."
For completeness it may also be noted that the Nolan Committee subsequently recommended that a whistleblowing policy should allow access to the district auditor and, separately, to some other external body such as an independent charityxi. Finally, in 1997 the Committee stressed that "It is important that all Departments, executive NDPBs and NHS bodies should institute codes of practice on whistleblowing, appropriate to their circumstances, so as to enable concerns about malpractice to be raised confidentially inside and, if necessary, outside the organisation. It is important that these arrangements are well publicised within organisations so that staff are left in no doubt about the avenues open to them"xii.
The Policy refers to the White Paper - The New NHS - of December 1997 which cited to the steps being taken to "to make sure that staff can speak out when necessary, without victimisation". We understand that this refers to the letter of 25 September 1997 from Alan Milburn - then Minister of State - to Trust Chairs entitled 'Freedom of Speech'. This mentioned the Government's support for the draft legislation and urged Trusts to act in advance of it to ensure that NHS staff feel "able to raise their concerns about health care matters in a responsible way without fear of victimisation". The Minister looked to Trust Boards "for assurance that the [1993 Guidance is] incorporated into your local employment policies and practices".
Public Interest Disclosure Act
The legislation, known as the "whistleblowers law" came into force on the 2nd July, 1999. The aim of the legislation was to promote and protect responsible whistleblowing by making it clear to staff that there were safe alternatives to silence and by making it clear to organisations that they should not deter or discourage staff from raising concerns about wrongdoing. While the legislation takes up the approach of the Nolan recommendations it also closely follows the jurisprudence on public interest disclosures under the law of confidence.
Briefly it encourages NHS staff to raise concerns internally or with the Department of Health as there they have the strongest protection. It also protects disclosures to prescribed regulators such as the Audit Commission and Health and Safety Executive where the worker has good evidence to support his/her concern. It also protects wider disclosures where they are justified by one of four circumstances and the particular disclosure is reasonable. One of these circumstances is where the worker reasonably believes he will be victimised if he raises the matter internally or with a prescribed regulator. In considering whether the disclosure was reasonable, regard is had - inter alia - to the identity of the recipient, the seriousness of the matter, patient confidentiality and whether a whistleblowing policy should have been used.
These disclosures are only protected if they are made in good faith. The legislation also discourages anonymous disclosures in that to invoke the protection the whistleblower must show that he was victimised by his employer because he had blown the whistle. If the disclosure was anonymous then to win any claim the individual will additionally need to prove that his employer knew it was him.
In September 1999 the Policy Pack was sent out to all Trusts in England with HSC 1998/198 which stated that all Trusts should implement local whistleblowing policies and procedures. In the wake of the Inquiry into the baby heart deaths at the Bristol Royal Infirmaryxiii John Hutton, Minister of State, restated the government commitment saying "Ministers expect a climate of openness and dialogue in the NHS which encourages staff to feel able to raise concerns about healthcare matters sensibly and responsibly without fear of victimisation."
Clinical Governance and whistleblowing
In the wake of a number of serious health care scandals - most notably the Bristol baby deaths casexiv - and in a welcome desire to drive up standards and promote a more open and learning NHS, the Department of Health made clinical governance central to policy development and clinical practice. Clinical governance is defined as,
"a framework through which organisations are accountable for continuously improving the quality of their services and safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish."xv
An effective whistleblowing policy is key to ensuring effective clinical governance. This is reflected time and again in CHI Clinical Governance Reportsxvi where staff confidence in raising concerns is tested on the ground and found seriously wanting in too many instances. Whistleblowing ensures that where there are clinical governance problems, staff have an alternative route to flag up serious concerns so that they can be addressed effectively.
It is in this context, for example, that UNISON has, and will continue to, support members like senior manager Julia Wassell who recently highlighted concerns over the treatment of patients at Broadmoor Hospital. Ensuring staff can speak up for patients and are heard is also an important motivating force behind UNISON's Duty of Care Campaignxvii.
SECTION 2: HSC 198/199
To see a copy of Health Service Circular 198/199, please click here.
SECTION 3: PUBLIC CONCERN AT WORK'S HELPLINE CLIENTS WORKING IN THE HEALTH SECTOR - 1993 TO 2002
Between the start of the helpline in late 1993 through to the end of 2002, Public Concern at Work received 3,310 public concerns. Of these, 448 were from people working in health (e.g. nurses, doctors). The table below breaks this down by year.
NUMBER OF CLIENTS
AS % OF ALL CLIENTS
The figures for 1993/1994 reflect all calls received by the helpline, both public and private concerns.
The following graphs show these figures over time.
SECTION 4: Public Concern at Work's Summary of PIDA
Bright v Harrow & Hillingdon NHS Trust (2000) - Qualifying disclosure: nun wearing a habit not a PIDA concern; Media disclosure unreasonable & no substance to concern
Bright, a consultant psychiatrist, raised a concern internally about a nun who visited psychiatric patients in the community while wearing her habit. Bright did not think the Trust took the concern seriously and went to the national media, asserting that it was for her, not the Trust, to decide what was in the public interest. Bright's contract was not renewed and she brought a PIDA claim. ET held the concern about a nun wearing a habit was not a qualifying disclosure, and that in any event [a] Bright did not believe the risk to the nun was substantially true or genuine, and [b] her disclosure to the media was not reasonable in the circumstances.
Hittinger v St Mary's NHS Trust & Imperial College (2001) - Worker with two employers
Hittinger was the clinical governance manager for the Trust and had been introduced and supplied to do the work by Imperial College. On a preliminary point, both respondents had said Imperial College had determined her terms of engagement and hence it alone was the employer for PIDA. ET held both respondents were Hittinger's employer within PIDA, as section 43K(2) expressly states employer ' includes' not 'is'.
Kay v Northumberland Healthcare NHS Trust (2001) - Public disclosure: reasonable to go to media with NHS concern, role of whistleblowing policy, Human Rights Act
Kay managed a ward for the elderly. Kay internally raised concerns about bed shortage but was told there were no resources. The problem worsened and some elderly patients were to be moved to a gynaecological ward. Kay wrote a satirical open letter to the Prime Minister for his local paper. With Trust's agreement, Kay was photographed for local press. When letter published, Trust gave final written warning for totally unprofessional and unacceptable conduct. Kay won as the disclosure was protected because [a] 43G, balanced with freedom of expression in the Human Rights Act; [b] Kay did not know of Trust's whistleblowing policy; [c] no reasonable expectation of action following earlier concerns; and [d] it was a serious public concern.
Llewelyn v Carmarthenshire NHS Trust (2002) - Interim relief: no reasonable prospect
Llewelyn, a consultant at the Trust, became concerned at the increasing use of nurses in his care to deliver expert services to GPs. A panel was set up to review the relevant services. This concluded in May 1999 finding that Llewelyn was primarily responsible for the irretrievable breakdown in his unit and should be replaced. Meanwhile a second panel had been set up under the auspices of the Royal College of Physicians. In November 1999 this concluded that Llewelyn was unsuitable to function as a consultant. After a period off sick, Llewelyn was suspended in June 2000 and dismissed in March 2001. In November 2000 Llewelyn had contacted the Audit Commission about his own position being a waste of public money and about other concerns. Llewelyn brought a claim for interim relief which failed. The ET held that on the level of evidence available to it, Llewelyn had no prospect of being able to dislodge the causal connection that his dismissal was due to the findings of the two reports rather than to his disclosures.
Mounsey v Bradford NHS Trust (2002) - Public disclosure: reasonable to go to media to defend colleague against unfair media coverage.
Mounsey was medical secretary to a consultant, P, who was concerned about quality of breast cancer services. Mounsey shared and adopted these concerns through and from 1999. In 2001 Mounsey was interviewed on Yorkshire TV and said that in her view P had been made a scapegoat. For giving this interview, the Trust instigated disciplinary proceedings and Mounsey then resigned. At the ET once the Trust learned that Mounsey had agreed to do the interview to counter media coverage about P which she thought had been unfair, the Trust conceded that Mounsey had made a protected disclosure. Award to be decided.
SECTION 5: UNISON'S DUTY OF CARE CAMPAIGN
UNISON commissioned Public Concern at Work to undertake this whistleblowing survey as part of its "Duty of Care" campaign.
The campaign was launched because of members' concerns that a clear framework was needed to address excessive workloads, inappropriate delegation of work, unsafe working practices and a bullying culture within parts of the NHS. The campaign was also launched to provide a positive and safe framework to address the modernisation of health care services.
The campaign has so far produced a widely read manual The Duty of Care, a dedicated web page at www.unison.org.uk/healthcare/dutyofcare and is intended to provide an authoritative framework for discussion locally on safe working practices within healthcare, including advice on what to do if concerns do arise.
The campaign builds on UNISON previous work such as its "Be Safe" campaign and UNISON's previous handbook on whistleblowing "Speaking out without fear " (UNISON 1999).
SECTION 6: CHI - EMERGING THEMES FROM 175 CLINICAL GOVERNANCE REVIEWSxix
An analysis of CHI's first 175 clinical governance reviews, the bulk of which have been of acute trusts, has found that hospitals in the north and midlands have better working arrangements to care for patients than those in the south and London.
Specifically, trusts in the north and midlands have fewer 'areas of concern' highlighted in their CHI reports, and higher overall clinical governance scores.
Because there have been fewer reviews in Wales it is not possible statistically to draw comparable geographical conclusions.
The findings do highlight some concerning trends that can be seen in both England and Wales. In more than 80% of NHS organisations reviewed the following themes emerged:
The findings also show that of the seven components of clinical governance, four are more likely to stand out as causing concern. These are:
The remaining three components of clinical governance are: clinical audit, research and effectiveness; and education, training and continuing professional development. It has long been recognised that the NHS is far from perfect, but it is by no means all bad news. From the reviews we have carried out so far we have been able to identify a considerable amount of innovative practice. Among the many examples are:
These are just a few of the many examples of notable practice that if shared with other NHS organisations could be the solution to common problems.
Overwhelmingly, the CHI score received most often in the published reports, across all the components and all geographical areas, was two, the score that indicates worthwhile progress and shows some development of the clinical governance agenda. The allocation of the third score, indicating good implementation of clinical governance, was far less common. Very few trusts have received the fourth score for excellence.
These findings show that there is still some way to go. We can also see that real progress is being made and we are moving in the right direction with many examples of good practice existing that could be shared across the NHS.
In time CHI will have a database of evidence on individual organisations that will detail emerging themes from its inspections. This will provide an opportunity for the NHS to access information on good practice for research purposes or to learn from the experience of others, within similar fields of work. Until that time CHI will report regularly on what it finds. It is hoped that these findings both good and bad will really help drive change in the NHS so that it is constantly learning and constantly improving.
SPEAKIING OUT WITHOUT FEAR
1 WHISTLEBLOWERS RIGHTS
2 FIRST STEPS
3 DECIDING ON PROCEDURES
A A whistleblowing policy and procedure for your workplace
B Advice to members who are concerned about malpractice, wrongdoing and health and safety breaches
C Advice to members who choose to act independently
D Dealing with cases where a member blows the whistle, before getting advice
E Dealing with whistleblowing cases in your branch
F Conflicts of interest
G Building on best practice
H UNISON Hotline for whistleblowers
4 APPENDIX ONE
Sample model whistleblowing policy and agreement
5 APPENDIX TWO
6 APPENDIX THREE
Public Interest Disclosure Act 1998
7 FURTHER HELP
UNISON recognises employees in the public services are often in the best position to know when the publics interest is being put at risk. Staff can act as an early warning system on safety issues, and help uncover fraud and mismanagement in the workplace.
But employees wondering whether to raise concerns or blow the whistle on wrongdoing often fear they wont be listened to, or that they will be putting their jobs at risk.
Under the Public Interest Disclosure Act 1998, which came into force in July 1999,workers who speak out against corruption and malpractice at work have statutory protection against victimisation and dismissal. Legal protection is very important if employees are to be encouraged to raise concerns. But a more open culture also needs to develop, which recognises the potential of employees to make a valuable contribution to the running of public services, and the protection of the public interest.
Unions have a major role to play in creating that culture, in raising concerns with management, and ensuring that the employers policies and practices are fair and have the confidence of staff.We provide support for employees who blow the whistle, and have established a role as watchdogs. This guide is aimed at branch officers and stewards. It provides advice on how to negotiate agreements and procedures on whistleblowing.
Branch officers and stewards have a key role to play inraising concerns about wrongdoing, and in assisting members to speak out.With the new legislation, there is a need to negotiate good agreements to help protect whistleblowers, and ensure their concerns are taken up.
FOR ADVICE ON:
_ the law on whistleblowing
_ how whistleblowing agreements can benefit employers and employees
_ whistleblowing policies
_ procedures to include in agreements on whistleblowing
_ how to assist members to raise concerns about wrongdoing or malpractice
_ how to deal with members who choose to act independently
_ how to deal with cases where a member blows the whistle before getting advice
_ how to deal with whistleblowing cases in the branch
_ how to deal with conflicts of interest
_ how to publicise good agreements
_ the UNISON Hotline for whistleblowers
A model agreement is included in Appendix 1 as a guide to the wording and procedures you may want to include in your whistleblowing agreement. For further advice, contact your regional officer and national service group officers. Assistance will also be available from an officer in each region with special responsibility for assisting branches to deal with whistleblowing cases.
The Public Interest Disclosure Act 1998 aims to protects whistleblowers from victimisation and dismissal, where they raise genuine concerns about a range of misconduct and malpractice. It covers virtually all employees in the public, private and voluntary sectors, and certain other workers, including agency staff, homeworkers, trainees, contractors, and all professionals in the NHS.The usual employment law restrictions on minimum qualifying period and age do not apply. A worker who blows the whistle will be protected if the disclosure is made in good faith and is about:
_ a criminal act
_ a failure to comply with a legal obligation
_ miscarriage of justice
_ danger to health and safety
_ any damage to the environment
_ an attempt to cover up any of these.
The Act extends protection given to health and safety representatives to individuals who raise genuine concerns about health, safety or environmental risks. (The Employment Rights Act 1996 already gives some legal protection to employees who take action over, or raise concerns about, health and safety at work.) Whistleblowers will be protected when in good faith they:
_ raise concerns internally
_ raise concerns with the relevant Government minister if they work in quangos or in the NHS
_ make disclosures to prescribed persons, such as the Health and Safety Executive, the Inland Revenue, the Audit Commission and the utility regulators (see Appendix 2)
_ make wider disclosures (which could include to the media, MPs or the police), where the matter:
is exceptionally serious;
is not raised internally or with a prescribed regulator, because the worker reasonably feared that he/she
would be victimised;
is not raised internally because the worker reasonably believed that there would be a cover-up and there is no prescribed person;
was raised internally or with a prescribed person, but was not dealt with properly.
Such wider disclosures must be reasonable in all the circumstances.
Where a whistleblower is victimised following a protected disclosure, he/she can take a claim to an employment tribunal for compensation. If a whistleblower is dismissed, he/she can apply for an interim order to keep his/her job, pending a full hearing.There is no qualifying period for bringing an unfair dismissal claim under this Act and awards made under it are unlimited.
Confidentiality clauses, such as gagging clauses in employment contracts and severance agreements, which conflict with the protection provided by the Act, will not be legally binding. For further details see Appendix 3.
Increasing numbers of organisations in the public and private sectors are introducing whistleblowing procedures. But others are lagging behind and still need to develop whistleblowing systems. Whistleblowing arrangements are particularly important where organisations are providing services for the public. While the Public Interest Disclosure Act 1998 does not require employers to adopt whistleblowing policies, it gives them every reason to do so. Unless there are effective procedures in place, which demonstrate an organisations willingness to listen to and address concerns,workers are more likely to take their concerns outside (to prescribed persons, or to the media, MPs or the police) and be protected by the Act in doing so. An effective whistleblowing policy can also help foster good relations, avoid crisis management, and minimise damaging incidents and unpleasant publicity.
If your workplace has no whistleblowing systems, you could explain the benefits of introducing a new procedure for workers. For example, a whistleblowing procedure:
_ demonstrates an organisation is committed to ensuring its affairs are carried out ethically, honestly, and to high standards
_ does not cost a great deal to introduce
_ is good employment practice
_ shows an organisation is keen to introduce procedures to protect public safety and
_ will help develop a culture of openness, accountability and integrity
_ will encourage employees workers to raise matters internally, making wider
disclosures (to non-prescribed persons, or to the media, MPs or the police) less likely
_ will contribute to the efficient running of the organisation and the delivery of services
_ will help curb corruption, fraud and mismanagement
_ will help uphold the reputation of the organisation, and maintain public confidence.
As a branch representative, you will have a major role to play in raising members concerns about wrongdoing and malpractice with management, and commenting on your employers policies and practices. But it is also very important to ensure the culture in your workplace is one where workers can raise concerns without fear of being seen as troublemakers.
Whistleblowing agreements offer important protection for employees wanting to raise concerns about wrongdoing and malpractice. And they can help change the culture, enabling concerns to be dealt with and resolved at local level. So a whistleblowing agreement can be an important tool in building up union organisation in your workplace. You are likely to be the first port of call for members who are troubled about wrongdoing or mismanagement at your workplace. So you will need to agree a whistleblowing procedure with your employer which recognises your role in advising and representing members when they raise concerns.
You will also need to decide how to deal with:
_ members who wish to pursue their own case
_ members who come to you after they have already blown the whistle
_ whistleblowing cases in your branch
_ conflicts of interest, where both the whistleblower and the alleged wrongdoer are members.
DECIDING ON PROCEDURES
The next section gives practical guidance on how to draw up a whistleblowing policy and procedure with your employer. It includes a checklist of the different stages you will need to cover to protect whistleblowers and develop a more open culture in your workplace.
Following sections explain:
_ advice you can give to members who are concerned about malpractice
_ advice you can give to members who wish to raise concerns independently
_ how to deal with members who have already blown the whistle before they come to you
_ how to deal with whistleblowing cases in the branch
_ how to deal with conflicts of interest, where both the whistleblower and the alleged wrongdoer are members
_ how you can help other branches build up good practice on whistleblowing.
_ how members can use the UNISON Hotline for whistleblowers
A A WHISTLEBLOWING POLICY AND PROCEDURE FOR YOUR WORKPLACE
A whistleblowing policy
A whistleblowing policy is designed to encourage employees to raise concerns about malpractice, danger and wrongdoing internally. But it should do nothing to deter staff from making disclosures to prescribed persons, such as the Health and Safety Executive, the Audit Commission or the utility regulators.The policy should also ensure any public sector workers, whose employer has a Government appointed member on its board, are aware that they may disclose information direct to the Secretary of State, and will not be victimised or dismissed for doing so.
It may state the organisation is committed to achieving the highest possible standards in the delivery of public services, and wishes to encourage freedom of speech to help achieve this.
A whistleblowing policy should:
_ be in writing
_ say who and what it applies to
_ provide for concerns to be dealt with quickly, preferably within clearly set out time limits
_ ensure feedback is provided about the progress and outcome of the investigation
_ make it clear the employer is committed to tackling malpractice and wrongdoing
_ ensure staff know malpractice and wrongdoing will be dealt with seriously
_ ensure confidentiality for the whistleblower, if this is requested
_ ensure concerns and responses to them are properlyrecorded
_ set out the relationship between the whistleblowing policy and the employers other procedures (e.g. disciplinary, grievance, harassment)
_ allow concerns to be raised independently from line management
_ recognise employees may lawfully raise concerns externally
_ explain that employees wanting to raise concerns can seek the help of their trade union representative.
A whistleblowing procedure
It is important to agree a proper whistleblowing procedure with your employer, because the Act lays down rules whistleblowers must follow to be legally protected. Any whistleblowing procedure you agree should ensure trade union representatives can advise and represent members during investigations.
There may be occasions when the concern raised is so serious that an inquiry may need to be held.You should try to ensure any whistleblowing procedure you agree includes arrangements for inquiries.Where possible, try to negotiate the unions involvement in the inquiry, including drawing up the terms of reference and deciding on the membership of the panel, and the implementation of the recommendations of the inquiry.
It can be very helpful if your employer agrees that the most senior person in your organisation has an open door policy, which encourages trade union representatives or whistleblowers to raise serious concerns with them directly. If your employer agrees to proper procedures and has an open door policy which encourages individuals to raise concerns, it will help create an open culture where workers feel their concerns will be heard and acted upon. Alongside a whistleblowing policy and procedure, it is important to negotiate a procedure for evaluating standards of service delivery in your workplace. It should ensure the trade union is involved in any monitoring and evaluation exercises.
Your employers disciplinary procedure will also need to be amended to take account of the whistleblowing policy and procedure.The disciplinary procedure should make it clear
that harassing or victimising a whistleblower (including informal pressures) will be considered a serious disciplinary offence, and will be dealt with under the disciplinary procedure.
The main steps you could include in any whistleblowing procedure are:
_ Role of Trade Unions
The employer should recognise the right of whistleblowers to be advised and represented by
their union when raising concerns under the whistleblowing procedure.
_ Designated officer
The employer should appoint a designated officer to be a point of contact for concerns raised under the whistleblowing procedure. He/she should be a senior officer, and report directly to the most senior person in the organisation.The designated officer should be impartial and capable of taking an independent view on the concern raised. Large organisations may appoint several designated officers.
_ Raising a concern
An employee should normally raise concerns about wrongdoing and malpractice with his/her immediate manager first.The manager would notify the matter to the designated officer.
Where it is not appropriate to go via normal management reporting channels, because the matter is sensitive and serious (for example, if the whistleblower believes his/her
manager is involved), he/she should contact the designated officer.
_ Employers response
The designated officer or line manager would, if requested, arrange an initial interview. At this stage, the whistleblower would be reassured he/she would be protected from possible victimisation, and would be asked if he/she wanted confidentiality and/or wanted to make a written or verbal statement. In either case, the designated officer or line manager would write a brief summary of the interview, which would be agreed by both parties.
The designated officer or line manager would report to the most senior person in the organisation, who would set up any further necessary investigation.
Where exceptionally the concern is about the most senior person, the chair of the board/governing body would decide on how to proceed. This may include an external investigation.
_ The investigation
It may be necessary that certain investigations would be carried out in strict confidence (with the employee under investigation not being informed until necessary).Where there are allegations of ill treatment of patients/ clients/ customers, the employee under investigation may have to be suspended. The designated officer would give regular feedback on the outcome of the investigation to the whistleblower.
If the investigation shows there is a case to be answered, the disciplinary rules and procedures would be used. If there is no case to answer, the designated officer would
ensure the employee is protected, provided the disclosure was made in good faith.
Disciplinary action would only be taken where a false allegation is made maliciously.
Where the concern raised is sufficiently serious, an inquiry may need to be held.
The union should seek to negotiate its involvement in the inquiry, including drawing up the terms of reference and deciding on the membership of the panel, and the implementation of the recommendations of the inquiry.
_ After the investigation
The most senior person would brief the designated officer about the outcome of the investigation. The designated officer would then arrange a meeting with the whistleblower to give feedback on any action taken. (This would not include details of any disciplinary action, which would remain confidential.) The feedback would be provided within agreed time limits. Where the issue has been raised and dealt with by the line manager, the line manager will provide feedback as above. A note of the concern raised and how it was resolved will be lodged with the designated officer.
If the whistleblower is not satisfied with the outcome of the investigation, he/she would have be notified of their the right to make an external disclosure to a prescribed person, such as the Health and Safety Executive, or where justified, elsewhere, notwithstanding the result of the investigation.
_ Time limits
Time limits should be allocated for each stage of the procedure. If the time limits pass without any satisfactory action being taken, the concerns should be raised at the next level.
ADVISING MEMBERS WHO HAVE CONCERNS
Golden rules Remember:
Encourage members to use the internal whistleblowing procedure first, when raising concerns about wrongdoing and malpractice in your workplace. He/she should give your employer a reasonable opportunity to respond to concerns, before taking any further action.
Be sure of the facts:
_ Check the whistleblower has a reasonable belief and some evidence to back it up, before you advise or help him/her to raise any concerns under the whistleblowing procedure.
_ Before making a disclosure to a prescribed body (such as the Health and Safety Executive), the whistleblower should have good evidence to show he/she reasonably believes the information, and any allegations in it, are substantially true. It would help to have supporting evidence from colleagues to corroborate the whistleblowers evidence.
_ Before the whistleblower makes a wider disclosure (to the media, MPs or the police), contact your regional officer or a national service group officer, who can help you get legal advice on the whistleblowers position.
Disclosures are protected under the Act if they are made in good faith. If the whistleblower is acting purely on some ulterior motive, he/she may lose protection.
Make sure members dont use whistleblowing as part of a strategy in a political campaign. Whistleblowing procedures are designed to tackle wrongdoing and malpractice.
Guard against personal vendettas. Warn members against using the whistleblowing procedure to sort out personal disputes.
When negotiating over the recommendations of any investigation or inquiry, try to get the best outcome possible.You may have to accept compromises, with your employer taking action on only some of the concerns raised.
B ADVICE TO MEMBERS WHO ARE CONCERNED ABOUT MALPRACTICE, WRONGDOING AND HEALTH AND SAFETY BREACHES
If a member asks for advice about how to raise a concern about wrongdoing, malpractice or health and safety breaches:
_ Consult the employers whistleblowing procedure to check the agreed role of union representatives to advise and represent members raising concerns.
_ As a union representative, you could raise his/her concerns with your employer. If this is not agreed under the procedure, you would yourself need to reasonably believe the information tended to show a malpractice or wrongdoing had occurred / is occurring / is likely to occur, to ensure any disclosure you made to the employer was protected.
_ If your employer requires further evidence, the whistleblower may need to be involved, but you can advise and represent him/her.
_ He/she should try to raise the concern internally within your organisation, using the whistleblowing policy, since the Public Interest Disclosure Act 1998 provides the strongest protection for internal disclosures.
_ Do not encourage him/her to blow the whistle anonymously, since this would make it more difficult to win protection at a tribunal, if your employer victimised him/her.
_ You could advise the member of the circumstances in which he/she may make a disclosure to a prescribed person.
_ If he/she reasonably fears victimisation, or of a cover-up by your employer, or believes the matter is exceptionally serious, he/she could consider making an wider external disclosure. However, he/she should get legal advice from the union, before taking this step, and you could help arrange this. He/she should also bear in mind:
His/her disclosure will be more readily protected if it is to a body whose duty is to investigate the malpractice.
Where the public interest will be equally protected by disclosures to two bodies, the disclosure which causes less damage to your employer is likely to be more readily protected than the one which causes much damage.
As a union representative, you could consider making a public disclosure about the concerns he/she had raised, but you would need to get legal advice to ensure any disclosure you made was protected under the Public Interest Disclosure Act.
_ If he/she is considering making a disclosure to the media, he/she should get legal advice from the union, which you could arrange. Media disclosures are more likely to be
The information is not confidential
If it is confidential, there has been, or is likely to be, a cover-up and there is no prescribed person
If it is confidential, more restricted disclosures have not got a reasonable response
The matter is exceptionally serious, and he/she can show it is reasonable to make the disclosure to the media.
Again, you could consider making a disclosure to the media about his/her concerns, but you would need to take legal advice to ensure any disclosures you made were protected under the law.
Always try to encourage members to raise concerns themselves, and to follow the procedures laid down in the whistleblowing policy and procedure. If you raise concerns on behalf of members, you should be protected from victimisation and dismissal, as you are acting in the normal course of your trade union duties. But you should ensure you follow the procedures, and make certain any disclosures you make would pass the tests for protected disclosures. If in any doubt, seek advice from your region, where there will be an officer with special responsibility for assisting branches to deal with whistleblowing cases.
C ADVICE TO MEMBERS WHO CHOOSE TO ACT INDEPENDENTLY
Sometimes a member may wish to deal independently with concerns he/she has. Or he/she may disagree with the advice you or other union representatives give him/her.
In either case, get a second independent opinion from your regional office.
If a member still wants to take responsibility for blowing the whistle, you should make him/her aware of the possible consequences.
You can ask the member to:
_ make sure the situation warrants whistleblowing look at:
who is suffering
relevant workplace policies
any professional codes of conduct covering his/her work
_ consider the consequences of whistleblowing:
is he/she alone? Or is he/she supported by his/her colleagues? And do colleagues have the same sense of resolve?
does he/she have the perseverance to see the case through?
what toll might the personal stress take on his/her personal life and career?
is he/she prepared to undergo possible personal anguish?
If, after thinking these issues through, the member still wishes to blow the whistle, you could give him/her the following advice:
_ use the whistleblowing policy
_ gather information and facts which will support his/her case
_ stick to the facts, and avoid personal arguments
_ contact Public Concern at Work (for further details see Further Help at the back of this booklet) or a lawyer for advice
_ consider other external organisations he/she should might contact, such as Government ministers, professional regulatory bodies, Members of Parliament, the media.
Emphasise that he/she should seek legal advice before making such external disclosures.
D DEALING WITH CASES WHERE A MEMBER BLOWS THE WHISTLE BEFORE GETTING ADVICE
You may have to deal with a case where a member has blown the whistle externally (say to the media), before coming to you for advice. In such a case, you will need to try to protect the member, and limit the effect of any damage from the disclosures.
You could take the following steps:
_ call a meeting of all members in your workplace
_ decide with members how to support the member who blew the whistle
_ develop a strategy with other trade unions in your workplace
_ campaign for changes in your workplace to remove the original cause for concern
_ contact your regional officer for further advice.
E DEALING WITH WHISTLEBLOWING CASES IN THE BRANCH
Members should be aware they have the right to go directly to the Region, or higher, where they have concerns about branch officials (who they work alongside). If you publicise this, it would help demonstrate UNISON is aware such cases can occur, and has the structures in place to respond.
UNISON recognises there can be wrongdoing or malpractice by union members, and wishes to develop an open culture, where members feel their concerns will be heard and acted upon.
F CONFLICTS OF INTEREST
There may be occasions when the whistleblower and the alleged wrongdoer are both members of your branch.While this is not an unusual situation for a branch to face, it does require special arrangements to ensure both are properly represented.
All members are entitled to representation to ensure that any investigation conducted under the whistleblowing policy and procedure, and any disciplinary procedures that may follow, are conducted fairly.Where the concerns raised prove mistaken, it will be clear to everyone how important it was that the alleged wrongdoer was properly represented. If the whistleblower and the alleged wrongdoer are both members of your branch, they cannot be represented by the same branch representative. You will need to sort out an appropriate system of representation for such cases, and you may want to seek assistance from your regional office. In this case, it is important that the whistleblower is not represented by an officer of lower rank than the officer representing the alleged wrongdoer.
G BUILDING ON BEST PRACTICE
UNISON wants to monitor how effective this guide and the whistleblowing legislation are in bringing about a change in the culture of workplaces where we organise and represent members. If you have examples of good practice and/or whistleblowing agreements in your workplace, please send these to:
Bargaining Support Group
1 Mabledon Place, London WC1H 9AJ
Tel: 0171 388 2366 Fax: 0171 388 3646
e-mail: [email protected]
H UNISON HOTLINE FOR WHISTLEBLOWERS
Members wishing to raise a concern about malpractice, wrongdoing and health and safety breaches can also contact a UNISON Whistleblowers Hotline for advice.
The number for the Hotline is:
0800 5 97 97 50
SAMPLE MODEL WHISTLE BLOWING POLICY AND PROCEDURE
The following agreement uses the kind of language which employers might require and use themselves.Have a look at what it says.You can pick and choose what you need, and you dont need to stick to the precise wording.
WHISTLE BLOWING AT WORK
1 The word whistleblowing in this Policy refers to the disclosure internally or externally by workers of malpractice, as well as illegal acts or omissions at work.
2 (Employers name) is committed to achieving the highest possible standards of service and the highest possible ethical standards in public life and in all of its practices.To achieve these ends, it encourages freedom of speech. It also encourages staff to use internal mechanisms for reporting any malpractice or illegal acts or omissions by its employees or ex-employees.
APPENDIX ONE 4
Other policies and procedures
3 (Employers name) has a range of policies and procedures, which deal with standards of behaviour at work; they cover Discipline, Grievance, Harassment and Recruitment and Selection. Employees are encouraged to use the provisions of these procedures when appropriate. There may be times, however, when the matter is not about your personal employment position and needs to be handled in a different way. Examples may be:
_ Malpractice or ill treatment of a patient/client/customer by a senior member of staff
_ Repeated ill treatment of a patient/client/customer, despite a complaint being made
_ A criminal offence has been committed, is being committed or is likely to be committed
_ Suspected fraud
_ Disregard for legislation, particularly in relation to health and safety at work
_ The environment has been, or is likely to be, damaged
_ Breach of standing financial instructions
_ Showing undue favour over a contractual matter or to a job applicant
_ A breach of a code of conduct
_ Information on any of the above has been, is being, or is likely to be concealed
This list is not exhaustive.
(Employers name) will not tolerate any harassment or victimisation of a whistleblower (including informal pressures), and will treat this as a serious disciplinary offence, which will be dealt with under the Disciplinary Rules and Procedure.
Role of Trade Unions
4 (Employers name) recognises employees may wish to seek advice and be represented by their trade union(s) officers when using the provisions of this policy, and acknowledges and endorses the role trade union officers play in this area.
5 The following people have been nominated and agreed by (employers name) as designated officers for concerns under this procedure. They will have direct access to the most senior person in the organisation.
X ADDRESS TELEPHONE
Y ADDRESS TELEPHONE
Z ADDRESS TELEPHONE
Role of designated officer
6 Where concerns are not raised with the line manager, the designated officer will be the point of contact for employees who wish to raise concerns under the provisions of this policy.Where concerns are raised with him/her, he/she will arrange an initial interview, which will if requested be confidential, to ascertain the area of concern.
At this stage, the whistleblower will be asked whether he/she wishes his/her identity to be disclosed and will be reassured about protection from possible reprisals or victimisation. He/she will also be asked whether or not he/she wishes to make a written or verbal statement. In either case, the designated officer will write a brief summary of the interview, which will be agreed by both parties.
Role of the most senior person in the organisation
7 The designated officer will report to the most senior person in the organisation, who will be responsible for the commission of any further investigation.
Complaints about the most senior person in the organisation
8 If exceptionally the concern is about the most senior person in (Employers name), this should be made to the chair of the board/governing body, who will decide on how the investigation will proceed.This may include an external investigation.
9 The investigation may need to be carried out under the terms of strict confidentiality i.e. by not informing the subject of the complaint until (or if) it becomes necessary to do so.This may be appropriate in cases of suspected fraud. In certain cases, however, such as allegations of ill treatment of patients/clients/ customers, suspension from work may have to be considered immediately. Protection of patients/clients/customers is paramount in all cases.
9.1 The designated officer will offer to keep the whistleblower informed about the investigation and its outcome.
9.2 If the result of the investigation is that there is a case to be answered by any individual, the Disciplinary Rules and Procedure will be used.
9.3 Where there is no case to answer, but the employee held a genuine concern and was not acting maliciously, the designated officer should ensure that the employee suffers no reprisals.
9.4 Only where false allegations are made maliciously, will it be considered appropriate to act against the whistleblower under the terms of the Disciplinary Rules and Procedure.
10 If the concern raised is very serious or complex, an inquiry may be held.
10.1 (Employers name) recognises the contribution the trade union(s) can make to an inquiry, and agrees to consult with the trade union(s) about the scope and details of the inquiry, including the implementation of the recommendations of the inquiry. (Employers name) recognises that in many cases it will be desirable that a trade union(s) representative will be appointed to the panel of the inquiry.
Following the investigation
11 The most senior person in the organisation will brief the designated officer as to the outcome of the investigation.The designated officer will then arrange a meeting with the whistleblower to give feedback on any action taken. (This will not include details of any disciplinary action, which will remain confidential to the individual concerned).The feedback will be provided within the time limits (to be specified).
11.1 If the whistleblower is not satisfied with the outcome of the investigation, (Employers name) recognises the lawful rights of employees and ex-employees to make disclosures to prescribed persons (such as the Health and Safety Executive, the Audit Commission, or the utility regulators, or, where justified, elsewhere.
12 This policy and procedure has been written to take account of the Public Interest Disclosure Act 1998, which protects workers making disclosures about certain matters of concern, where those disclosures are made in accordance with the Acts provisions. The Act is incorporated into the Employment Rights Act 1996, which also already protects employees who take action over, or raise concerns about, health and safety at work.
Disclosures of information may be made to the following persons, who have been prescribed by the Government:
1 Health & Safety risks: HSE and local authority
2 Environmental issues: the Environment Agency
3 Utilities: OFTEL, OFFER, OFWAT, OFGAS, Rail Regulator
4 Financial Services & the City: Financial Services Authority (and pending its full operation, its predecessor bodies); HM Treasury (insurance)
5 Fraud & fiscal irregularities: Serious Fraud Office, Inland Revenue, Customs & Excise
6 Public sector finance: NAO, Audit Commission, Accounts Commission for Scotland
7 Company law: Department of Trade & Industry
8 Competition & consumer law: Office of Fair Trading and local authority
9 Others: Certification Officer (Trade Unions), Civil Aviation Authority, Charity Commission, Criminal Cases Review Commission, Data Protection Registrar, Occupational Pensions Regulatory Authority.
APPENDIX TWO 5
PUBLIC INTEREST DISCLOSURE ACT 1998
The Public Interest Disclosure Act 1998 came into force in July 1999. Its purpose is to protect workers from victimisation, who want to raise concerns about malpractice, in good faith, in ways specified by the Act.
The popular term for such employees is whistleblower. The Act does not actually use the term whistleblowers, referring instead to qualifying disclosures by workers.
The Act directs the worker toward raising the matter internally in the first place and, where there is an internal whistleblowing procedure, to use it.However the Act will protect workers where they make an external disclosures in a range of circumstances. If a worker chooses to disclose information in a way which is not covered by the Act, he/she will lose its protection.
The Act applies to people at work raising genuine concerns about crimes, civil offences (including negligence, breach of contract, breach of administrative law), miscarriages of justice, dangers to health and safety or the environment and the cover up of any of these. It applies whether or not the information is confidential and whether the malpractice is occurring in the UK or overseas.
In addition to employees, it covers workers, contractors, trainees, agency staff, homeworkers, and every selfemployed professional in the NHS.The usual employment law restrictions on minimum qualifying period and age do not apply to this Act. It does not presently cover the genuinely self-employed (other than in the NHS), volunteers, the intelligence services, the army or police officers.
A disclosure made in good faith to the employer (which may include a manager or director or through an agreed whistleblowing procedure) will be protected if the whistleblower has a reasonable suspicion that the malpractice has occurred, is occurring or is likely to occur. Where a third party is responsible for the malpractice, this same test applies to disclosures made to him.
Disclosures for advice
A disclosure made for the purpose of obtaining legal advice is protected. Disclosures to union officials under agreed whistleblowing procedures would also be protected.
Disclosures to Ministers
The same test applies where someone in a public body subject to ministerial appointment (e.g. the NHS and many quangos) blows the whistle direct to a Minister in the sponsoring Department.
The Act makes special provision for disclosures in good faith to prescribed persons. These are likely to be regulators such as the Health and Safety Executive, the Inland Revenue and the Financial Services Authority. Such disclosures will be protected where the whistleblower meets the tests for internal disclosures and, additionally, honestly and reasonably believes that the information and any allegation in it are substantially true.
Wider disclosures (e.g. to the police, the media, MPs, and non-prescribed regulators) are protected if, in addition to the tests for regulatory disclosures, they are reasonable in all the circumstances and they are not made for personal gain.
The whistleblower must, however, meet a precondition to win protection for a wider disclosure.This is either that (a) he/she reasonably believed he/she would be victimised if he/she had raised the matter internally or with a prescribed regulator; or (b) there was no prescribed regulator, and he/she reasonably believed the evidence was likely to be concealed or destroyed; or (c) the concern had already been raised with the employer or a prescribed regulator; or that (d) the concern is of an exceptionally serious nature.
If these provisions are met and the tribunal is satisfied that that disclosure was reasonable, the whistleblower will be protected. In deciding the reasonableness of the disclosure, the tribunal will consider all the circumstances, including the identity of the person to whom it was made, the seriousness of the concern, whether the risk or danger remains, and whether the disclosure breached a duty of confidence which the employer owed a third party.Where the concern had been raised with the employer or a prescribed regulator, the tribunal will also consider the reasonableness of their response. Finally, if the concern had been raised with the employer, the tribunal will consider whether any whistleblowing procedure in the organisation was or should have been used.
Where a whistleblower is victimised or dismissed in breach of the Act he can bring a claim to an employment tribunal for compensation. All awards will be uncapped and based on the losses suffered (though for victimisation short of dismissal the overriding requirement is that the award should be just and equitable).Where the whistleblower is an employee and he/she is sacked, he/she may within seven days seek interim relief so that his/her employment continues or is deemed to continue until the full hearing.
Gagging clauses in employment contracts and severance agreements are void insofar as they conflict with the Acts protection.
Where the disclosure of the information is in breach of the Official Secrets Act or another secrecy offence, the whistleblower will lose the protection of the Public
Interest Disclosure Act if he/she has been convicted of the offence or if an employment tribunal is satisfied, effectively beyond reasonable doubt, that he/she was guilty of the secrecy offence.
Though the Act does not require organisations to set up whistleblowing procedures, the existence of the Act will encourage the adoption of such procedures.Key aspects of such procedures, as endorsed by the Committee on Standards in Public Life are:
_ a clear statement that malpractice is taken seriously in the organisation;
_ respect for the confidentiality of staff raising concerns, if they wish it;
_ the opportunity to raise concerns outside the line management structure;
_ access to independent advice;
_ an indication of the proper way in which concerns may be raised outside the organisation if necessary; and penalties for making false allegations maliciously.
ADDITIONAL PROTECTION DURING UNOFFICIAL INDUSTRIAL ACTION
Generally, a person taking unofficial industrial action who is dismissed cannot bring a claim for unfair dismissal.There are various statutory exceptions (for example if the main reason for the dismissal is, in fact, carrying out specific health and safety activities).Those exceptions have now been extended (Section 16 of the 1998 Act) to apply to cases where the main reason for the dismissal is a protected disclosure.
WHERE TO FIND THE ACTS PROVISIONS
This Appendix refers to some sections of the 1998 Act above.The Act itself, however, incorporates its provisions into the Employment Rights Act 1996, mostly in new sections 43A to 43L, but also in other new sections.
For further advice, contact your regional officer and national service group officers.
You can also get advice from:
Public Concern at Work
16 Baldwins Gardens
London EC1N 7RJ
Tel: 0207 404 6609
Fax: 0207 404 6576
Email: [email protected]
Designed and produced by UNISON Communications Department.
Printed and published by UNISON Policy & Research
1 Mabledon Place, London, WC1H 9AJ.
Key Themes: abuse in care homes, whistle-blowing, failures of legal system, true story. Book Description and About the Author Eileen is one of the unsung heroines of our time. Years ago when I opened the first refuge in Chiswick, London in 1971, I was fighting to bring attention to the plight of victims of domestic violence. Nan was the oldest member of our community. She came to take refuge with us after a severe beating from her son. She died as a result of a frenzied attack from him when he was drunk. I was always aware of the level of abuse amongst the fragile elderly people in this country but the battle to even get the subject of domestic violence acknowledged amongst the powers that be in England meant that the plight of the elderly in this country slipped under the radar. Whistleblowers anywhere in the world have to recognise that they will always be met with derision and abuse. We all grow up with the nursery story of the little boy who pointed to the Emperor with no clothes I always imagined his mother took him off and washed out his mouth with soap.As a nation the English do not like anyone who 'makes a fuss,' and I met Eileen when she was already cleaning lavatories to make a living after she was roundly condemned and blackballed by a major Nursing Home provider for daring to criticise their methods of caring for the fragile, elderly patients.
Eileen is an immensely courageous woman and this book is the story of her fight to gain recognition for the rights of the elderly community to be treated with respect and compassion. She tells the story of her brave and ferocious battle in such a way that the reader will be swept along and able to share her triumphs and the lows of what has become her life's mission. Her sense of humour never deserts her nor her archaic take on the pomposity of most of her enemies. It is chilling in these pages to read about the lengths people in power are willing to go to stop Eileen and her supporters trying to protect their charges. That a woman of her integrity and compassion should be black balled from the caring profession and forced to clean for a living is a terrible indictment of our society. I firmly believe that this book will reach a wide audience.All of us at one time or another will face the future care of our loved ones. Inevitably all of us will also look for caring as we reach an incapacitated old age. It is the Eileen's of this world who seek to make the changes needed.