The topic of whistleblowing has always been controversial, and particularly so with reference to the NHS and social services. In recent times the term has gone from being associated with the disclosure of an employer’s confidential information to the press (by what were perceived, more often than not, to be disgruntled employees), to being more commonly understood as the raising of concerns about malpractice occurring within an organisation, either with the employer itself, or outside the organisation – with a regulatory body or with the media. There can be no denying the need that those with responsibility for the care and protection of vulnerable people should be able to speak up, without fear of reprisals, where there is suspicion of malpractice affecting the care or safety of those people, yet it wasn’t until 1999, with the coming into force of the Public Interest Disclosure Act, that such workers obtained the unequivocal protection of the law.
The common law has always recognised a public interest exception to the general duty of confidentiality. The 1968 case of Initial Services v Putterill affirmed that the exception extends to any misconduct of such a nature that it ought in the public interest to be disclosed to someone having a proper interest to receive it. A disclosure, for example, to the police by a care worker in a residential home that one of the residents is being sexually abused would be justifiable in the public interest.
In Attorney-General v Guardian Newspapers (the ‘Spycatcher case’), the House of Lords described the public interest exception in yet wider terms, suggesting that the public interest in maintaining confidence may be overridden wherever there is a countervailing public interest in disclosure which is sufficient to override it.
Whilst this public interest exception might offer a ‘just cause’ defence to employees to a suit for breach of confidence by the employer, it is of limited assistance to employees who, feeling compelled to make a disclosure about some organisational malpractice, find themselves on the receiving end of disciplinary action, particularly where that action falls short of dismissal.
The North Wales inquiry into child abuse in care homes and, more recently, the inquiry into events at the Bristol Royal Infirmary (BRI), are just two examples which highlighted the need for staff to be able to raise concerns about suspected abuse and other malpractice and to be safe from reprisals in so doing. Stephen Bolsin, the anaesthetist who raised concerns about the unusually high infant mortality rates following heart surgery at the BRI, felt forced out of the NHS as a result.
Well-publicised cases such as that of Graham Pink, who was dismissed for gross misconduct after the Guardian newspaper published letters he had written raising concerns about staffing levels on his ward, alerted the NHS to the need to take action, and in 1993 the NHS Executive published its Guidance for Staff on Relations with the Public and the Media (EL(93)51), setting out the rights and responsibilities of staff when raising issues about health care concerns. The Guidance called on NHS Trusts to establish local procedures for handling staff concerns, whilst exhorting staff to raise concerns informally, in the first instance, with their line manager. Where it was not possible to resolve concerns informally, the procedure should allow for the concern to be referred up through line management to the highest level of local management and finally to the Chairman of the Trust or Authority.
That guidance was followed in 1997 by the Secretary of State’s letter to Chairmen of Trusts and Health Authorities on Freedom of Speech in the NHS, emphasising the need to ensure that any member of NHS staff feels able to raise concerns about health care matters in a responsible manner without fear of victimisation. Importantly, the letter highlighted that ‘gagging clauses’ – all encompassing confidentiality clauses treating any information as confidential and disclosure without prior consent as an automatic disciplinary offence – were contrary to NHS Executive policy. An accompanying letter from the Director of Human Resources stated that where there were well-founded reasons for staff not wishing to raise concerns through the usual management chain, other avenues should be open to them. As a minimum requirement, the investigation of staff concerns raised in confidence could be entrusted to a senior manager or Board member given specific responsibility for such matters.
Most recently, the Department of Health’s ‘No Secrets’ guidance stresses that it is the responsibility of all staff to act on any suspicion or evidence of abuse or neglect and to pass on their concerns to a responsible person/agency and directs staff and employers to the provisions of the Public Interest Disclosure Act 1998. Aside from a moral or ethical responsibility, we think that this duty might be able to be spelt out of the law of negligence, or the positive obligations owed by public authorities, under the Human Rights Act, although it would be the employer, rather than the individual staff member, who would be sued for harm arising from the organisation having ignored the signs. To this extent, it is perhaps likely that employers will begin to include such an obligation as part of their contractual terms when taking on staff, and this in turn will necessitate certain guarantees for the employee, of freedom from victimisation.
The Public Interest Disclosure Act came into force in 1999. The stated aim of the Act is to protect workers who make certain disclosures of information in the public interest. It does this largely by inserting a new Part IVA into the Employment Relations Act 1996.
The Act is very broad in scope, covering virtually all workers, including trainees, contractors, agency workers, homeworkers and all NHS health professionals. The usual restrictions as to minimum length of service and age do not apply, so that workers are protected from the first day of employment. The Act makes it unlawful for a worker to be subjected to any detriment, including reprisals by colleagues and disciplinary action; and a dismissal for making a ‘protected’ disclosure is automatically unfair. There is no cap on compensation, and should an employer fail to comply with a re-employment order made by an Employment Tribunal, the Tribunal will make a further award of compensation of up to £11,440. ‘Gagging clauses’ in contracts of employment or severance agreements, which purport to prevent the making of a protected disclosure, are rendered void, and employers should review their use of confidentiality clauses to ensure that they do not fall foul of the Act’s provisions.
Only ‘qualifying’ disclosures are capable of protection under the Act. A qualifying disclosure is defined in section 43B as any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
The term ‘any legal obligation’ is extremely broad. It includes, for example, the breach of a statutory or regulatory requirement, contractual obligations, common law obligations such as negligence, and breach of administrative law. In Parkins v Sodexho Ltd, the EAT held that there could be no distinction between an employer’s ordinary legal obligations and a legal obligation on the employer that arose from the contract of employment. Staff who complain about a breach of their employment contract and are then subjected to a detriment as a result, would therefore be able to bring a claim under the PIDA 1998
Protected internal disclosures
The Act sets out the circumstances in which a qualifying disclosure is capable of being a protected disclosure. An obvious intention of the legislation is to encourage workers to raise concerns internally, at least in the first instance, and where a qualifying disclosure is made to the employer or the person with legal responsibility for the matter, the worker has to satisfy the relatively low threshold of acting in good faith and holding a ‘reasonable belief’ in the truth of the information. Reasonable belief does not mean that the information has to be correct: it is sufficient that the worker held the belief and that it was reasonable for him to do so. Where the worker is employed by a body some or all of whose members are appointed by the Government, the same requirements apply if the worker chooses to report the matter straight to the sponsoring Department. Thus NHS staff may go direct to the Department of Health in making a qualifying disclosure, provided they act in good faith and hold a reasonable belief in the truth of the information.
Disclosure to prescribed bodies
Certain regulatory bodies have been ‘prescribed’ for the purposes of the Act. In order to be protected, a worker who makes a qualifying disclosure to a prescribed body must, in addition to acting in good faith, hold a reasonable belief that the information disclosed, and any allegation contained in it, are substantially true (s43F). This a higher threshold than that required for internal disclosures. It suggests that the worker must be able to show some good factual basis, or some good evidence, to support his or her belief. Again, however, this does not impose a requirement that the information be correct, provided that the worker is honestly mistaken in that belief and that the belief was reasonable. There is no requirement that the disclosure should have first been made to the employer. The disclosure must be made to the prescribed regulator responsible for the particular matter, in order to be protected. The General Social Care Council has indicated that it will be the body prescribed to receive concerns from social care workers about poor standards of care for vulnerable people, including abuse and neglect. The full list of prescribed persons and the matters for which they are prescribed is available at www.dti.gov.uk/er/individual/pidguide-pl502.htm#app1
Wider external disclosure
The Act makes provision for wider external disclosures to be protected. This would include, for example, disclosures to the media, to the police and to non-prescribed regulators. Unsurprisingly, the threshold is high. In addition to the requirements set out above in relation to prescribed persons, the disclosure must not be made for personal gain, and the worker must either have had a reasonable belief that he would be victimised if he made the disclosure internally; or that the information would have been concealed or destroyed by the employer and there was no prescribed person or body to whom the disclosure could be made; or the worker must show that he had previously made a disclosure of substantially the same information to the employer. The disclosure must also be reasonable in all the circumstances.
Factors which a Tribunal will take into account in deciding whether an external disclosure is protected include the identity of the person to whom the disclosure was made (a disclosure to the police about suspected abuse is more likely to be protected than one to the media), the seriousness of the alleged malpractice; the response of the employer to any previous disclosure to it of the alleged malpractice; whether the disclosure breached any duty of confidentiality owed to a third party; and whether the worker complied with any procedure he or she was authorised by the employer to use.
Where the subject matter of the disclosure is exceptionally serious, the disclosure will be protected if it meets the test for disclosures to prescribed regulators and is not made for personal gain. The disclosure must also be reasonable, having particular regard to the identity of the person it was made to. The Act does not define ‘exceptionally serious’, but again a disclosure about the physical or sexual abuse of someone in care would be likely to fall within this category. Where legislation provides for a reward to be paid in respect of information received, this does not constitute ‘personal gain’ under the Act.
The importance of responding promptly and appropriately to staff concerns about malpractice is illustrated by the case of Blandon v ALM Medical Services Ltd. Mr Blandon, a nurse, reported his concerns about the welfare and care of patients at the home where he was working to his employer’s PA, Mr Sinclair. Mr Sinclair responded that he would deal with Mr Blandon’s concerns on his return from holiday. Some 10 days later, whilst Mr Sinclair was still on holiday, Mr Blandon became concerned about a further deterioration in standards of care and took his concerns to the SSI. Following an inspection of the home, the SSI wrote to the proprietor indicating that at least four out of Mr Blandon’s six concerns were substantiated and should be addressed. Mr Blandon was subsequently disciplined for his conduct, first receiving a written warning, followed swiftly by dismissal. He brought a complaint in the employment tribunal, which found that the company was in breach of the PIDA 1998. The disclosure was a qualifying one in that the allegations amounted to a health and safety danger and/or a breach of a legal obligation and/or criminal offence. Although the SSI is not a prescribed body under the Act, Mr Blandon’s disclosure to it qualified for protection as:
he had held a reasonable belief that his concerns were substantially true and had acted in good faith;
the disclosure was not made for personal gain and there had been a previous disclosure of substantially the same information to the employer;
the SSI was an appropriate body to go to and, given the seriousness of the concerns, it was reasonable for Mr Blandon not to wait for Mr Sinclair to return from holiday.
The tribunal also noted that the company did not have a whistleblowing policy in place. It awarded Mr Blandon £13,000 in compensation for unfair dismissal and £10,000 for the detriment he suffered in receiving the written warning.
As can be seen from the above case, although the Act does not oblige employers to put in place whistleblowing procedures, the absence of such procedures will increase the likelihood of a wider external disclosure being protected. HSC 1999/198, which is the Department of Health’s guidance to the PIDA 1998, states that every NHS Trust should have in place local policies and procedures to comply with the provisions of the Act. The National Minimum Standards for care homes for older people, for care homes for younger adults, for domiciliary care and for residential family centres, all include a requirement for procedures for responding to suspicion or evidence of abuse or neglect – including whistleblowing – and that all allegations of neglect and abuse are followed up promptly and action taken and recorded.
The annotated notes to the PIDA 1998 and further information on whistleblowing policies and procedures can be obtained from the website of the charity Public Concern at Work.
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