David Drew August 2016

* UK law designed to protect whistleblowers from retaliation in the workplace is inadequate.

* PIDA does not meet most international standards

* New report recommends wide ranging legal changes in the public interest.

* Francis Freedom to Speak Up protections look weak in comparison

According to a new report published by international NGO Blueprint for Free Speech and the Thomson Reuters Foundation the UK law designed to protect whistleblowers from retaliation in the workplace is inadequate and does not meet most international standards.

The report, PROTECTING WHISTLEBLOWERS IN THE UK: A New Blueprint, follows a 3 year study of the experiences of UK whistleblowers. Although applicable to all whistleblowers it singles out health (the scandal-ridden NHS) and social care whistleblowers as a special case:

In no other industry in the UK is the case for stronger whistleblower protections clearer than the healthcare field.

Lessons learnt from NHS whistleblower protection failings should be applied to all sectors.

Blueprint outlines key failings and suggests robust solutions to ensure that whistleblowers in the UK are protected and disclosures made in the public interest are supported.

What’s wrong with PIDA?

PIDA is retrospective. It offers compensation after the fact. Too little (if at all) and too late.

Employment Tribunals are not the informal low cost solutions they were set up to be when it comes to whistleblower cases. Expensive taxpayer funded lawyers rule the roost.

There is no administrative (regulatory) alternative to the ET system where whistleblowers can seek protection before retaliation begins.

Technical legal principles have been imported into PIDA from other areas of law. These diminish protection and the capacity for remedy.

PIDA has no direct civil or criminal penalties to prevent or discourage bullying harassment or victimisation.

PIDA now rates poorly against international standards. Of 27 recognised standards 13 are completely missing from UK law. In a scoring system PIDA achieved a mark of only 38%, well below many other countries. This is particularly concerning when PIDA is held up by Sir Robert Francis, in his Freedom to Speak Up report for example, as a recognised best practice standard.

Proposals for protection

The Blueprint report advocates urgent legislative change. The areas that need particular attention are:

Pre-emptive protection from all forms of retaliation – before jobs are lost or careers ruined.

Modern burdens of proof that provide fair odds for whistleblowers to defend their rights

Substantial penalties for those who retaliate against whistleblowers, and for those who ignore orders to cease retaliation.

Full compensation to cover all costs and loss to whistleblowers

Mandatory independent investigations of bona fide reports of misconduct and corrective action.

A requirement for employers to make a range of disclosure channels available to workers, including anonymous reporting

Training for managers in the public and private sectors.

An obligation on prescribed bodies to investigate allegations and provide a response with reasons for any action or inaction. (Regulators such as CQC and NHS Improvement continue to claim that they have neither the power nor the duty to investigate disclosures even of avoidable patient deaths.)

Winners into losers

Blueprint conducted in-depth reviews of 50 cases filed with Employment Tribunals and conducted 12 detailed formal interviews with whistleblowers. Vignettes of Sarah, Anne Brigitte Claudia and others attest the length of time in each case to get a verdict (average 20 months). And the paltry sums awarded in compensation. They only hint at the personal suffering, the stress and anxiety, the damage to health and family. These women (they often are women) fought long and hard. And not just that, the fight was fundamentally unfair. These are mainly low paid workers who saw something wrong and reported it. They won at a price most are not willing to pay. When we get effective whistleblower legislation it will be in part their struggle that has secured it.

The Freedom to Speak Up Report

It is 18 months since Sir Robert Francis’s F2SU report was published. He acknowledged the widespread horrific victimisation of NHS whistleblowers “because they tried to do the right thing for patients”.

Francis had the same material (and more) at his disposal as Blueprint. He came to pretty much the same conclusions on legal protection:

PIDA legislation is limited in its effectiveness. At best it provides remedies after detriment, including loss of employment. Even these are hard to achieve. Too often by the time a remedy is obtained it is too late to be meaningful.

However, he ducked the robust solutions we find in Blueprint. Before the start of his review Francis told a group of us who had been instrumental in his commissioning that he would not be making any recommendations that Jeremy Hunt was going to reject:

Although the existing legislation is weak, I have not recommended a wholesale review of the 1996 Act for two reasons. First, I do not think legislative change can be implemented quickly enough to make a difference to those working in the NHS today. What is needed is a change in the culture and mind-set of the NHS so that concerns are welcomed and handled correctly.

Francis offered no real solutions to whistleblower victimisation. No change in law other than a couple of twiddles. No prevention or deterrence of retaliation. No level playing field. A National Guardian with no statutory or investigatory powers. Compare that to Blueprint’s robust proposal for an independent agency to ensure early intervention and protection. Francis’s answer to the need for managerial accountability was the now discredited Fit and Proper Person Test which has not held a single victimising manager to account.

Only if the good intentions of any law are matched by a change in culture can a safe alternative to silence be created, he opined. But, as Jeremy Hunt told Parliament, that kind of culture change will take a generation. No, says Blueprint, introduce robust laws to protect whistleblowers now. Most public health advances requiring change in individual behaviour

and culture has necessitated legislation. As with smoke-free legislation etc. culture change would follow on its heels.