Whistleblowing for employers

The Government expects public sector bodies to have a whistleblowing policy (BSI, 2008). Health and social care commissioners should extend this expectation to service providers. Staff should be encouraged to raise concerns, at first internally, so that they can be dealt with promptly. Organisations that do not respond to such concerns put themselves at risk to exposure of any wrongdoing through employees blowing the whistle externally.

Research from number of sources (Holihead, 2000, BSI, 2008, IBE, 2007) has highlighted the advantages for organisations of supporting whistleblowers. Some of the benefits include:

Employers should:

Employer responsibilities

There is no duty on employers to investigate concerns raised by their employees (Lewis, 2008).There are also no specific whistleblowing requirements in the Care Quality Commission’s Essential Standards of Quality and Safety (2010) - it does, however, provide guidance separately.

The Francis report (2013), following failings in Mid Staffordshire, called for better safeguards for whistleblowers recommending a new criminal offence for wilfully obstructing someone who is trying to raise a concern. Francis also recommended a ‘duty of candour’, which would require openness and honesty from both staff and management. In the wake of this report, in March 2013, the Government banned the NHS from including ‘gagging clauses’ in severance packages to stop staff from speaking out about their concerns (The Guardian, 2013).

Public Concern at Work (2013) has called for changes to the Public Interest Disclosure Act 1998, including to ensure that employers take measures to prevent the bullying of whistleblowers by colleagues, for example, in the same way that the Equality Act seeks to prevent discrimination by colleagues. In February 2013 the Government announced such protection, known as ‘vicarious liability’, in a proposed amendment to the Enterprise and Regulatory Reform Bill. The amendment provides a defence for employers who have taken all reasonable steps to prevent such detrimental treatment.

In addition, the Bill proposes to make a further, contentious amendment to whistleblowing provisions. At present a disclosure must be made ‘in good faith’ but the amendment proposes that disclosures should be ‘in the public interest’. The intention is to prevent people from using whistleblowing protection provisions in cases relating to contractual disputes. Critics, including Public Concern at Work (2012) and David Lewis, Professor of Employment Law at Middlesex University (Chamberlain, 2012) have argued, however, that this may prevent disclosures from people who fear that they cannot prove a public interest. The Bill is proceeding with the public interest requirement; however, any compensation awarded by a court can be reduced by up to 25 per cent if the claim was deemed not to be made in good faith. PCAW (2013) has argued that this Bill represents a missed opportunity for addressing problems which have arisen with regard to legal protection for whistleblowers.