We are delighted our Government lobbying has paid off with an amendment to Section 105 of the Utilities Act 2000. This Section was introduced to protect national security interests and commercial secrets but lacked any protection for whistleblowers in the regulated energy sector from speaking out about wrongdoing – and if they did – they could have faced fines or jail for up to two years. The new Government amendments now allow whistleblowers to raise concerns and be protected by the Public Interest Disclosure Act 1998 (PIDA). In addition, they will not face prosecution by pursuing a legal claim at an employment tribunal.
Protect Chief Executive Liz Gardiner said, “We’re pleased that this overly-restrictive law has been amended so that whistleblowers can speak up without fearing of committing an offence. This is a step forward for whistleblowing in the energy sector, but the Government needs to review similar restrictions on whistleblowers still present in numerous other acts”.
COVID-19 has drastically changed the way in which we work. Government guidance has led to the temporary closure of a number of businesses while others have been tasked with finding quick and effective ways to ensure that staff are able to work from home where possible and that business can continue as usual.
For organisations employing key workers, there is now a heightened need for services to be delivered safely. We know from our Advice Line that this time of public emergency is giving rise to new concerns about keeping patients, customers and colleagues safe. Staff need to feel supported, valued, and looked after.
The way in which we work may have changed, but the need for workers to be able to raise concerns when things go wrong has not. Whistleblowing is an organisation’s best early-warning system and now more than ever organisations should ensure that staff feel safe and supported when they speak up and that issues are properly investigated and resolved.
Organisations should consider the following steps to ensure that staff can blow the whistle properly:
- Building a positive speak up culture: While homeworking (for those able to work remotely) may present physical barriers to staff raising concerns you need to make sure that these do not prevent staff from raising concerns. Employers who have staff working from home should make sure that managers regularly touch base with staff and encourage them to raise any concerns that they have and make sure that managers are equally accessible to staff during working hours (via phone, email or video). Encourage your senior leaders to lead by example and drive this cultural shift by championing a good speak up culture.
- Update your whistleblowing policy: Now is a perfect time to review and update your whistleblowing policy to make sure that it complies with legal, regulatory and industrial developments. Make sure you provide a number of clear channels for staff to raise their concerns (including the names and contact details of key contacts) and ensure that your policy is in plain English and easily accessible online.
- Test staff attitudes to whistleblowing: Organisations should make sure that they proactively engage with staff and ensure staff are aware of how and where to blow the whistle. Staff need to have trust and confidence in their organisation’s ability to handle their concerns. Why not take the time to test your organisation’s culture through online staff surveys, focus groups or listening exercises – all of which can be delivered remotely.
- Train your staff : While training staff face-to-face may be difficult, e-learning and video conferencing make it possible to train staff even when they’re working remotely. Make sure that all staff across your organisation understand what whistleblowing is; how and where to raise and escalate concerns, the difference between whistleblowing and grievances and where they can get independent advice as a whistleblower. Make sure that managers listed within your whistleblowing policy are trained on their role and responsibilities. You may want to develop FAQs for managers which explains how they should handle the confidentiality and victimisation of whistleblower.
These are difficult and uncertain times, and a strong message that you value your staff and are listening to their concerns will help to protect you, your staff and the general public.
Written by Hari Raithatha, a Senior Adviser on our Advice Line. Hari works closely with Protect’s Training and Consultancy team to help organisations meet whistleblowing best practice. He has qualified as a solicitor with Protect in 2020.
Protect, has today (March 19) announced the appointment of Liz Gardiner as its new Chief Executive.
Liz, who joined Protect as Legal Officer in July 2018, has been Acting Chief Executive at the charity since December last year when Francesca West stood down.
Liz said, “I am delighted and honoured to be working for such a great charity with such talented and committed staff. I am looking forward to acting as an ambassador for Protect and building on our work, to change whistleblowing culture for good across workplaces. I am passionate about Protect’s work and the impact we can have in encouraging speaking up to stop harm.”
Before joining Protect, Liz, who is a qualified employment solicitor, worked at charity Working Families on their legal helpline, advising parents and carers about discrimination and flexible working issues. Liz also has strong public affairs and communication skills; she has worked in both Houses of Parliament and as Parliamentary Officer for Working Families and the Royal College of Nursing.
Protect Chair, Paul Boyle said, “Firstly on behalf of the Board, I would like to thank Francesca for all her hard work and we all wish her well. The Board is delighted to appoint Liz who stood out head and shoulders amongst many applicants. She has impressed the Board and staff with her positivity, enthusiasm and ambition for the charity. I’d like to congratulate Liz on behalf of the Board on her appointment and offer any support if needed over the next few months, which will undoubtedly be challenging for CE’s up and down the country. The work of Protect is as vital as ever, if not more so.”
As part of a series of sector specific round tables, Protect, together with hosts Mayer Brown, brought together whistleblowing specialists from insurance firms large and small earlier this month.
The seminar, introduced by Pete Chapman of Baker Mackenzie and Chris Chapman of Mayer Brown, set out why whistleblowing matters to insurance firms. Firms need to consider the extension of the Financial Conduct Authority and the Prudential Regulation Authority rules to the insurance sector, as well as the increase in regulators’ emphasis on non-financial misconduct in the post #Metoo era, and how they focus on diversity – and how effective whistleblowing can play a part in each area. Chris reminded the audience that the best way to avoid the FCA finding out first about a problem, is to make sure your internal whistleblowing arrangements are effective.
The panel posed questions to the room – how would you know if your arrangements were working well?
Mike Carpenter’s (former Legal and General Group Financial Crime Risk Director, and now a consultant) outlined the “Ps” that those responsible for whistleblowing should consider: philosophy, principles, policies, procedures, people, and performance. He encouraged attendees to measure the success of their whistleblowing arrangements with diagnostic tools – is a viewpoint supported by Jon Cunningham of Protect who offered the solution of the charity’s 360⁰ Benchmark in measuring operations, governance and staff engagement.
Protect Chair and ex-Aviva Chief Internal Auditor Paul Boyle OBE asked if the insurance sector has a greater level of responsibility to ensure that individuals with concerns of public interest are encouraged to speak up? Crucially, is it in insurers’ best interests to actively promote whistleblowing to their customers to reduce risks? The majority of delegates agreed. Both underwriters and brokers should be looking at the effectiveness of whistleblowing arrangements when assessing the risks of their customers – not just to reduce the need for large payouts to firms and individuals when malpractice has taken place, but – in the public interest – to avoid harm.
Finally delegates discussed the importance of trust in whistleblowing arrangements, and the need for senior buy-in if cultures are going to change. More could be done by associations and markets to issue best practice guidance: everyone should be involved in getting the message across.
By Business Support Manager Stella Sutcliffe
The launch of two backbench bills this year has kick started a Parliamentary debate about whether there should be a regulator, commissioner or ombudsman overseeing whistleblowing.
In February, Dr Phillipa Whitford, MP for Central Ayrshire, launched her Public Interest Disclosure (Protection) Bill in the House of Commons, and Baroness Kramer launched her Office of the Whistleblower Bill in the House of Lords the week before at the end of January.
Both bills address the lack of a streamlined approach in setting standards for whistleblowing arrangements among employers and regulators. This includes how whistleblowing investigations should be conducted, and what happens if the employer or regulator fails to investigate the concern or mistreats the whistleblower. Whilst an individual can seek legal redress through the employment tribunals by enforcing their rights under the Public Interest Disclosure Act 1998 (PIDA), this continues to overlook vital issues such as the actual concerns raised by the whistleblower, as well as the inconsistent and inadequate approach to whistleblowing practices from both employers and regulators.
An enforcement body overseeing whistleblowing malpractice would help with the disparity between regulators and their investigatory remit regarding whistleblowing concerns.
There are over 90 ‘prescribed persons’ UK (regulators) as well as non-prescribed regulators whistleblowers can raise their concerns to externally. Currently, only some regulators such as the financial services and health sectors have robust whistleblowing frameworks, which remains to be followed by regulators in other sectors. The Financial Conduct Authority (FCA) has a more expansive view of whistleblowing and their ‘reportable concerns’ include a wider remit that includes how the individual in question has been treated by their employer for whistleblowing. Similarly, in the health sector, the National Guardian’s Office (NGO) also concerns itself with the treatment of whistleblowers, which addresses the cultural elements related to whistleblowing in the workplace. Unfortunately, the individual aspect of whistleblowing is not dealt with by regulators who deal only with the concern itself.
We at Protect have also addressed these issues in our Draft Whistleblowing Bill which we launched in Autumn 2019 which proposes the introduction of a Whistleblowing Commissioner. We believe a Whistleblowing Commissioner – The Commissioner – will set standards for employers and regulators, investigate mishandled concerns, where a whistleblower has been mistreated, improve public awareness on the benefits of whistleblowing and its legal protections, and impose fines on employers or regulators for breaches of these standards. The Commissioner will bridge barriers that currently exist in practice – by closing the gap between what can be raised/investigated, and issuing an annual public report into how standards set by the Commission have been breached.
The Commissioner would also open-up tighter regulatory control in sectors that currently have little to no oversight. It would also act as a conduit to those sectors that have a complex regulatory regime or a cover a wide remit, like the education sector.
Having in place a whistleblowing Commissioner will provide a consistent application of whistleblowing practices but more importantly, it will provide another regulatory layer for whistleblowers to raise their concerns to and ensure compliance by employers and regulators and hold them to account.
We look forward to working with politicians, policy makers and campaigners to develop the idea of a central regulatory body for whistleblowing and the reform of the Public Interest Disclosure Act (PIDA)
By Legal Adviser Burcak Dikmen
Gagging clauses have become quite the talking point thanks partly due to the Harvey Weinstein scandal and the #MeToo era and countless other news stories exposing their misuse. Controversial debate around the use of gagging clauses, or NDAs (non-disclosure agreements) and financial settlements to conceal sexual assault and harassment has tarnished the image of NDAs and highlighted their harmful impact of encouraging a culture of silence in cases of serious misconduct.
NDAs, sometimes referred to as confidentiality clauses or “gagging clauses” are written into a contract to stop information being disclosed. They serve a useful and legitimate role in employment contracts and settlement agreements. They protect commercially sensitive information and prevent employees sharing this information with their competitors.
However, there is increasing evidence these gagging clauses are being used unethically by some employers to intimidate whistleblowers, silence victims of harassment and discrimination, and conceal wrongdoing in the workplace.
But there are limitations to what can legally be ‘gagged’ by NDAs, which workers are often unaware of.
The current law on whistleblowing states any agreement which prevents a worker from whistleblowing, or making a protected disclosure is void ( s43J Public Interest Disclosure Act, PIDA, 1998,) but s43J has been hotly debated. NDA wording is often vague and contains no clear guidance as to how confidentiality clauses should be used and to what extent they should highlight the worker’s rights.
Protect has long been calling for NDA reform. A key ask in our Draft Whistleblowing Bill to reform PIDA is NDA reform. We want to see stronger and clearer wording to prevent the use of gagging clauses and a guarantee whistleblowers faced with a settlement agreement will get legal advice on any non-disclosure clauses.
A Government Consultation March-April 2019 by BEIS (Department for Business, Energy & Industrial Strategy) concluded clauses being used to silence and intimidate victims of harassment and discrimination cannot be tolerated. Almost half (48%) of respondents had seen an example of a confidentiality clause that attempted to cloud a worker’s right to make a protected disclosure or overstretch the extent to which the information is confidential. The Consultation stated that it is important that workers understand their rights when they sign a confidentiality clause so they are not misled that they cannot disclose certain information. 83% of respondents agreed that confidentiality clauses should clearly highlight the disclosures that are not prohibited.
Protect suggested the following reforms to the law:
- an exclusion in any NDA allowing for the disclosure of information about workplace harassment or discrimination to a regulator - not just the police - so wrongdoing that falls short of criminal conduct can be investigated and individuals held to account
- improved advice for all employees: there is a very low awareness of employment rights around whistleblowing, as well as discrimination and harassment, and obscure wording around settlement agreements does not aid understanding• a standard document to be handed to all employees who sign a settlement agreement, explaining the limits of all confidentiality clauses in non-legalistic language
In our Draft Bill we address the lack of clarity of gagging clauses in settlement agreements by proposing clearer wording for s43J:
‘No agreement made before, during or after employment between an individual and an employer may preclude that individual from making a protected disclosure.’
Additional to this clearer wording is that any settlement agreement involving whistleblowing will have a clear statement saying that nothing in the agreement can stop the individual escalating the concerns, and certificate from an independent legal advisor explaining the requirements and limitations of the confidentiality clause.
We believe these provisions will make a whistleblower’s rights and responsibilities under a settlement agreement much clearer.
Blog written by Rhiannon Plimmer-Craig
Academics, journalists, whistleblowers, advocates and members of the public gathered at The Shard for an event hosted by Warwick Business School recently to discuss the hurdles they faced in their own journeys and recent trends in whistleblowing.
Protect’s Policy Officer, Laura Fatah, attended the event arranged by academics Marianna Fotaki and Iain Munro (www.whistleblowingimpact.com) with special guest Katharine Gun. Katharine was a translator based at British intelligence agency, GCHQ, who raised concerns in 2003 over a US plot to spy on the United Nations diplomats to ‘give the Americans an edge’ in their attempts to persuade the Council to go to war with Iraq.
Katharine Gun & Official Secrets
Gun knew this wasn’t right on three counts: GCHQ was being used for political means; the aim was to achieve war, and the diplomatic processes of the UN were being corrupted. She had also privately conducted her own research; and found “no reasonable reason” for the planned invasion. However – she was bound by the Official Secrets Act.
A lack of internal options lead Gun to conclude she had no option but to go against all her training and contact the media. Her whistleblowing has been made into the recent film ‘Official Secrets’.
Although the two states of the UK and the US eventually did go to war – they did so without approval of the UN, and amid international disapproval. Katharine Gun will be remembered for revealing to the world the underhand tactics of the US and UK.
The ‘public interest’ and who decides what this is was a key discussion point throughout the event at the Shard. Gun noted that the public interest defence, as used by the jury to successfully dismiss the case against Clive Ponting (who blew the whistle on the sinking of the Belgrano during the Falklands War), is no longer part of the Official Secrets Act. The public jury in that case clearly wanted to respect the societal value of the information that Ponting revealed, despite its confidential nature.
Mark Curtis, Editor of Declassified UK, spoke about the continued use of covert and potentially unlawful tactics the UK state still employs. He referred to cases when the UK is seen supporting the military operations of countries who have been found to be in breach of international law, such as the continued Saudi Arabian military assault of Yemen, the Israeli government’s illegal occupation of Palestinian land, and the US drone programme in Syria, Pakistan, and Afghanistan. Curtis highlights the particular difficulty whistleblowers face when raising concerns about the actions of their own government, as opposed to the vast majority of whistleblowers who raise concerns about malpractice or wrong doing in non-governmental institutions.
Trends in Whistleblowing
Academic Iain Munro gave a brilliant summary of his recent work exploring trends in whistleblowing, and how the modern whistleblower is often supported by a network – without which they could not be effective. Members of the network include lawyers, journalists, confidants, advocates and translators. The use of technology was also discussed, and how best this can be used to securely share source material; technology has enabled the open source sharing of data with journalists and members of the global public. There is room for a genuine debate over the role of redaction in various forms of networked whistleblowing, but there is little doubt that it has played a huge role in stimulating public debate over issues including the legitimacy of recent wars, the 2008 financial crisis, offshore tax evasion and global mass surveillance.
Dave Lewis, of Middlesex University, explored the idea of pro-active protection for whistleblowers, including a protected status parallel to that of pregnant women in employment. However, this would naturally require the sacrifice of confidentiality. Ian Foxley spoke of his own ordeal, which is still on going, and how whistleblowers might learn ‘survival techniques’ from other human rights defenders. There was agreement that whistleblowers are faced with an overwhelming psychological toll and often need support.
It was a fascinating event with many interesting points put across by both whistleblowers and academics. Protect look forward to discussing the issues raised and our campaign for a new law for whistleblowing with all the delegates.
By Laura Fatah
Protect is hosting a round table breakfast for the insurance sector at law firm Mayer Brown with Mike Carpenter (former Group Financial Crime Risk Director at Legal and General), Paul Boyle OBE (Chairman of Protect), and Chris Chapman (Compliance Partner at Mayer Brown).
Together, they will be discussing a number of topics around speak-up cultures, including the vital question of how to measure your programme’s effectiveness.
We would be delighted if you could attend and contribute your professional insight. Specific topics will include:
- Measuring the effectiveness of whistleblowing
- How to foster a positive speak-up culture
- What the biggest challenges are to developing a whistleblowing programme
- How to equip and train managers
If you are interested in attending this free round table,which takes place on March 4 between 830am-945.am at Mayer Brown’s Liverpool Street offices, please email Stella Sutcliffe, at email@example.com or call 20203 117 2520
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Find out more about our campaign here: https://protect-advice.org.uk/protect-to-campaign-for-a-new-whistleblowing-law/