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Do your staff feel comfortable enough to “blow the whistle”?
The allegations surrounding the Kids Company charity, which closed recently, acts as a timely reminder about the importance of having robust whistle-blowing procedures in place and acting on complaints when received.
Allegations have been made by former staff of Kids Company (which are denied!) about financial mismanagement and that the charity failed in its handling of allegations of sexually inappropriate behaviour, including sexual assaults.
One former worker says her concerns about sexual exploitation were not passed on internally and evidence suggests that the authorities were not alerted.
Whatever the true position, the issues relating to Kids Company perhaps suggests that either/or:
- Staff at the charity either did not feel confident about blowing the whistle
- That there was a lack appropriate procedures to follow
- Such procedures were not being applied properly
- A lack of internal training amongst staff and management on how to raise and address concerns
This highlights the importance, particularly within the social care sector, which is highly regulated, of creating an environment and ethos where staff feel comfortable to raise concerns, understand the procedures for doing so and that there are processes and systems in place to act upon those concerns.
What is ‘whistle-blowing’?
If workers bring information about a wrongdoing to the attention of their employers or a relevant organisation, they are protected in certain circumstances under the Public Interest Disclosure Act 1998. This is referred to ‘whistleblowing’ and there has been much publicity of this within the media in the financial sector, the NHS and the social care sector.
The intention is to protect the person who blows the whistle where the information disclosed is in the public’s interest, allowing people (i.e. staff, service users, contractors) to speak out if they witness any form of malpractice within an organisation.
To be protected the disclosure needs to be a qualifying disclosure, e.g. that one or more of the following matters is either happening, has taken place, or is likely to happen in the future:
- A criminal offence
- The breach of a legal obligation
- A miscarriage of justice
- A danger to the health and safety of any individual
- Damage to the environment
- Deliberate attempt to conceal any of the above
Importantly, the disclosure must be in the public’s interest. This is not defined but a recent case suggested that as long as the disclosure was on interest to a number of people (here it was 100 employees) then it could be in the public interest, even though this related to financial mismanagement which affected employees only within a private limited company and it did not affect anyone outside the company. Therefore, public interest may well be interpreted widely!
A disclosure by a worker should be made to the organisation. This means it is critical to have clear, user friendly and robust procedures in place. Absence of such processes or where the worker feels unable to use the organisations procedure, the disclosure can be made to a prescribed person so that employment rights are protected. E.g. Care Quality Commission.
Whistleblower rights and employers’ responsibilities
Whistleblowers in the workplace can claim automatic unfair dismissal if they are dismissed because they have blown the whistle. If they are victimised for doing so, they can claim compensation for suffering a detriment, i.e. demotion, bullying etc.
As of 25th June 2013, if a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith, it will have the power to reduce compensation by up to 25%.
Employers are encouraged to ensure they have whistleblowing procedures in place, induct staff about whistleblowing, create an environment that allows people to blow the whistle and train management on the handling on such disclosures.
QCS have a whistle-blowing procedure within the HR section of its management system and you should take advice where you believe someone has blown the whistle within your organisation.
Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor