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The Care Quality Commission (CQC) has published the findings of an independent review into how it dealt with concerns raised in relation to the regulation of Whorlton Hall.

Bosses at the (CQC) have been criticised in an independent report by David Noble into why it buried a critical report into Whorlton Hall hospital, a privately-run hospital in County Durham, in 2015. The report said the care watchdog missed multiple opportunities to identify abuse of patients and did not act on the concerns of its own members.

Protect Head of Policy, Andrew Pepper-Parsons said, “The CQC has acknowledged it was wrong not to make public this report in 2015. Yet, it’s a positive the CQC have now been transparent in airing failings in this way – it means that both the CQC and other organisations can learn from the experience.

“The findings into how the CQC handled the concerns raised by former CQC inspector Barry Stanley-Wilkinson is a stark reminder of the importance of feedback. What happens in practice needs to match the guarantees written in the whistleblowing or Speak Up policies. Though the CQC had a Speak Up policy that looked effective on paper, in practice it was found wanting, with no mechanisms to review how the policy operated in practice. The recommendations to improve the Speak Up process were made by the investigator, but these changes were not implemented.”

The report also found the whistleblower suffered a lot of stress and strain, in fact they had periods of sickness and eventually resigned stating they felt let down by the CQC.  Better feedback could have helped to elevate the stress.

Andrew added, “Having a written policy that meets best practice is straightforward.  But it is a common failing to deal with whistleblowing in the correct operational way”

The report again underlines the need to reform the Public Interest Disclosure Act 1998 (PIDA) to place a legal duty on employers to not just have a whistleblowing policy but to ensure it works effectively in practice. Our draft Whistleblowing Bill calls on employers follows existing best practice for internal whistleblowing arrangements and would require organisations to have the following things in place:

  •   Employer should establish channels where whsitleblowers can raise concerns that also ensures their confidentiality
  •   Designation of a senior individual who has responsibility for the effectiveness of reporting channels
  •   Diligent follow up to the disclosures by the designated person or department in the whistleblowing or Speak Up policy
  •   A reasonable timeframe, not exceeding three months following the disclosure, to provide feedback to the whistleblower

A story in today’s Guardian has highlighted how bosses at West Suffolk NHS Hospital demanded fingerprint samples in a bid to identify a whistleblower.

The report says that the hospital – which happens to be Health Secretary Matt Hancock’s local hospital –  used ‘bullying and intimidatory’ tactics towards doctors to seek out the identity of a whistleblower who revealed details of a botched operation to a patient’s widower.

Doctors were asked for fingerprints and handwriting and told non-compliance suggested guilt.

Protect Acting Chief Executive, Liz Gardiner said, “The scandal at West Suffolk hospital demonstrates significant failings in the Trust’s ability to handle whistleblowing concerns. Rather than focusing on the actual concern the whistleblower raised, the Trust has engaged in a witch-hunt to expose the whistleblower. Such actions will undermine staff trust and confidence in West Suffolk Hospital’s speak up arrangements. It is unlawful to subject a whistleblower to any detriment – and, if the reports are correct, senior managers’ actions may well have breached the employment rights of those who were brave enough to speak up.

She added, “Managers who have been found to have sanctioned such actions should face disciplinary action. We urge the Trust Board to urgently review its speak up arrangements and consider training all senior management in appropriate whistleblowing handling. It is imperative all staff in the NHS can speak up about wrongdoing without the fear of their confidentiality being breached.”

This week, a report by the National Guardians Office into Speaking up in the NHS in England highlighted that more than 1 in 10 whistleblowing cases were reported anonymously.


The National Guardian’s Office has published a report analysis of the data from Freedom to Speak Up Guardians to give a picture of what speaking up looks like in NHS trusts.

The report,  Speaking up in the NHS in England, reveals over the last year cases of speaking up to guardians have risen by 73 per cent, compared to 2017/18. However, the report also reveals that while low, the number of workers who indicated they were suffering detriment as a result of speaking up has remained static at five per cent. The National Guardian has said she’s disappointed in the “general and vague” responses on the action trusts are taken when detriment is reported.

Protect Acting Chief Executive, Liz Gardiner, said, “While there is much to celebrate in this report, the percentage of those reporting that they fear detriment has not changed. The NHS is not alone is speaking the right words but taking little action on detriment. We know from our advice line how prevalent victimisation of whistleblowers is – too many who raise concerns are bullied, sidelined or even forced out of their jobs.

“We’re also aware – from our training of employers across all sectors – that few organisations will discipline those responsible for treating whistleblowers badly. Staff receive a poor message about whistleblowing if they see their colleagues suffering and a reluctance by the employer to stop the bullying or victimisation.”

Of the callers to Protect’s advice line between January – December 2019, a total of 53.8% of health sector workers reported some form of negative treatment as a result of raising their concerns. The data showed of these calls 41.5% of cases were in relation to patient safety, and 20.4% over working practices.

Liz Gardiner said “Protect is campaigning to change the law to improve protections for whistleblowers, with a positive duty on employers to protect those who speak up from harm as well as fines and sanctions for employers who allow detriment to happen.  In the meantime, we’re pleased to see the National Guardian’s plans to work with Freedom to Speak Up Guardians and the Care Quality Commission to tackle the problem.”


We are looking for a new Chief Executive Office to lead Protect in supporting whistleblowers and promote whistleblowing.

Our new CEO will ensure we encourage a culture of ‘Speak Up, Stop Harm’, that we provide the best possible support to innocent people at risk. Building on our solid reputation, the CEO will act as ambassador for Protect, building impactful relationships with senior stakeholders and the media to promote our proactive approach to preventing harm. They will lobby government at national and international levels for improvements in legislation affecting public interest disclosures. They will develop new partnerships across all sectors to support employers to make UK workplaces safe. The CEO will ensure our funding continues to grow and will also inspire and support our staff team to develop their best potential.

We are looking for an inspiring leader with experience at CEO or Director level, demonstrably capable of influencing a variety of stakeholders, including the media, to challenge perceptions and secure cultural change. You will have a proven ability to build strong business development partnerships to allow us to maximise our reach, and a track record of growing and developing an organisation. You will possess strong leadership skills and be adept at guiding, coaching and supporting others at all levels to realise their potential. Crucially you will be passionate about our work and the impact we have on preventing harm. For more info visit our vacancies page


Research around whistleblowing claims under whistle blowing law, the the Public Interest Disclosure Act 1998 (PIDA) being brought before the employment tribunals point to a worrying figure of a 3% success rate.

Discrimination cases also fare as badly, with age discrimination cases being even lower at 1%. Overall, employment tribunal actions have a success rate of below 40%, with the highest being for redundancy claims at 39%. However, the majority of claims remain remarkably under 10%. [1]

But this 3% must be put into context.

PIDA suffers like all other employment tribunal claims due to the lack of legal support provided to individuals, which is part of a wider problem regarding access to justice in employment law, perpetuated by legal aid cuts.

With no current extension of legal aid to employment law cases (aside from discrimination cases), this may be one of the reasons to blame for this stark figure, which surely discourages claimants from pursuing whistleblowing claims to tribunal.

High legal costs mean whistleblowers relying on enforcing their rights under PIDA, are either left to take on this financial burden or left with no choice but to represent themselves in person. This leaves claimants vulnerable to employers who who have legal representation armed with a team of lawyers, due to the reputational risk involved in public interest cases.

The figures clearly speak for themselves.

From our research 40% of claimants were self-represented compared to the 44% who had legal representation. However, 68% of these claimants lost compared to the 53% who were represented.[2] This disparity means that whistleblowers are bearing the brunt of a regime which puts unrepresented claimants at a disadvantage making them less likely to succeed.

It is also becoming all too common for respondents to use costs warnings as an aggressive tool against whistleblowers to either withdraw or settle claims before going to a full hearing. Protect are in communication with the Solicitors Regulation Authority on this matter.

Settlements must also be considered when looking at this 3% statistic. In 2018/19, 31% of PIDA claims were settled through ACAS Early Conciliation.[3] This suggests that it also may be the case that many good claims are settled before seeing a full run at the tribunal, with poorer cases, especially with no legal support left to battle through without much success.  What we don’t know is how many of settled cases have access to early legal advice- there is no available data from the Government or elsewhere on this point.

Protect’s Whistleblowing Bill which is arguing for new legislation – will put whistleblowing rights on the same footing as discrimination to qualify for legal aid. This offers a more robust framework for legal aid that goes further than the EU Directive – breaking down barriers to justice, and providing further protection and support for whistleblowers to come forward in raising vital public interest concerns.

 

[1] Statistics taken from released quarterly tribunal figures for April to July 2019.

[2] Whistleblowing: Time for a Change, a 5 year review of Protect’s work (formerly Public Concern at Work) P22-23

[3] Statistics taken from released quarterly tribunal figures for April to July 2019.

 

 

By Protect Adviser Burcak Dikmen


Today’s Queen’s Speech sees the UK Government commit through an Employment Bill to: ‘Protect and enhance workers’ rights as the UK leaves the EU, making Britain the best place in the world to work’.

Details on what this will mean in practice are in short supply, and that includes what the future holds for reform to whistleblowing rights.  Butf or the Government to realise the commitment of ‘making Britain the best place in the world to work ’ reforming the legal protection for whistleblowers is essential.

Whistleblowing protection in the UK stands at cross-roads.

Lauded as the gold standard of protection laws, much has changed since the Public Interest Disclosure Act (PIDA) was introduced in 1998.  New laws in Ireland, Australia and now the recently passed EU Directive highlight how whistleblowing rights in the UK are starting to fall behind internationally.  The world of work, including the needs of whistleblowers, has moved on since 1998 and PIDA has not kept pace.

A failure to reform PIDA will impact on individual whistleblowers in the workplace, and their ability to seek compensation if they are victimised, dismissed or forced out of their job. Inadequate legal protection is a problem for us all – and may deter future whistleblowing disclosures.

The Queen’s Speech makes one concrete commitment: the creation on a Single Enforcement Body which is a new regulator tasked with protecting workers’ employment rights and ensuring that exploitation of workers is deterred.

We welcome this proposal.

Earlier in the year we contributed to the consultation on creating this body, pointing out that like all regulators, the Single Enforcement Body will need to rely on the information provided by whistleblowers. With this in mind we argued the body should be prescribed under PIDA as a regulator bolstering the legal protection for whistleblowers when they raise concerns with this body.

For the Government to ensure UK whistleblowing rights keeps pace with developments internationally, PIDA will need to be reformed in these key areas:

  1. Extending the scope of the law to include all those who raise concerns in a work-related context. This would allow volunteers, those in appointed positions and others to rely on legal protections if they are victimized for raising concerns.
  2. Increasing the range of disclosures which will qualify for protection to include gross waste or mismanagement of public funds and breaches of the employer’s policies and behaviour which can adversely affect the employer’s reputation or financial stability.
  3. Setting whistleblowing standards for employers to follow. Currently, outside of health and financial services, few employers face any requirements to have policies and procedures in place. Protect would like to see the introduction of specific mandatory arrangements to ensure that employers are dealing with whistleblowing concerns effectively, and a positive duty on employers to prevent victimisation.
  4. Providing protection to individuals who raise concerns with their trade unions representatives.
  5. Setting standards for prescribed persons (BEIS recognised regulators) to promote a consistency of approach in handling whistleblowing concerns across Britain’s range of industries.
  6. Increased clarity around settlement agreements and gagging clauses.
  7. Providing legal protection to those who are mistakenly identified as a whistleblower, or who may be considering a future disclosure.
  8. The introduction of an Independent Whistleblowing Commissioner, to investigate where concerns have been mishandled, set standards for employers and prescribed persons, improve public awareness and impose fines on employers or regulators for breaches of standards.
  9. Increasing the time limit individuals have to bring a claim in the Employment Tribunal.
  10. Introducing legal aid for claimants in whistleblowing cases.

By Head of Policy, Andrew Pepper-Parsons


Head of Policy at Protect, Andrew Pepper-Parsons spoke at the National Guardian Office Pan Sector Conference on our recent work with regulators and professional bodies, the aim of which is to explore the challenges and opportunities these bodies have when receiving whistleblowing concerns, and in particular in handling and responding to the individual raising the concern.

The NGO, which supports positive cultural change across the NHS through supporting a network of Freedom to Speak Up Guardians, arranged and hosted the event with delegates from a diverse industries to and industries to talk about the Public Interest Disclosure Act 1998.

Other speakers included academic Wim Vandekerckhove who presented a report of the findings from whistleblower research in Australia, one of which demonstrated the positive impact of carrying out a risk assessment at the point of disclosure, and how this can benefit both the whistleblower and the employer, in addition to reducing the impact of stress on the employee.

Sean Parker from the Civil Aviation Authority spoke about how the CAA had used its statutory statement of purpose to resist Freedom of Information requests made by the media. This prevented information given in confidence by whistleblowers being exploited for commercial benefit, where this would not improve flight safety. GDPR has stipulated the information only be used or the purpose that it was given, so if the media is unable to confirm how it will use these disclosures to improve flight safety, the regulator can resist this request.


A review calling on a total overhaul of the UK audit profession, following a series of corporate scandals has been welcomed by Protect.

Former London Stock Exchange Chairman, Sir Donald Brydon was tasked with reviewing the auditing sector, and his report,  ‘Assess, Assure and Inform, Improving Audit Quality and Effectiveness, states: ‘Audit is not broken but it has lost its way and all the actors in the audit process bear some measure of responsibility.’

The report calls fo a redefinition of audit, separating audit work from accountancy and reinforcing its role as a public interest function

Protect Acting Chief Executive, Liz Gardiner said: “We welcome the Brydon report’s proposals, and in particular the recognition that whistleblowing protections do not go far enough. As we have seen with recent scandals from Carillion to Patisserie Valerie, all too often wrongdoing can go undetected. There needs to be far greater transparency in auditing, and better protections for those who speak up.

“Going to an auditor may be an obvious choice for a whistleblower if the concerns are financial, but auditors are not generally prescribed persons. We support Sir Donald’s call for changes to the Public Interest Disclosure Act (PIDA) to widen the categories of concern so that they include financial misrepresentation, and so that a broader list of people – including shareholders and suppliers – are protected if they raise concerns about financial wrongdoing.”

Protect is campaigning to update PIDA and has drafted a Whistleblowing Bill which has greater scope and better protections than the current law.


Nearly half of brokers surveyed were ‘unaware’ of a newly introduced Senior Management and Certification Regime (SMCR). The new rules,  which come into play this month, have been extended to all insurance intermediaries and solo-regulated firms, just one year after the rules came into effect for insurers.

The SCMR legislation was originally introduced in the banking sector in 2013 following the financial crash as a way to encourage a culture of greater responsibility among senior staff.  Legislation was amended in 2016 to extend the rules to all authorised firms and this week saw it being extended to insurance intermediaries and solo regulated firms.

But a survey of 250 brokers by Eclesiastical Insurance found  56% of brokers were aware of the changes. Only 4% of brokers said that they were aware of everything the needed to do ahead of implementing SMCR, compared to a third who had no knowledge at all.

Protect Development Director Jon Cunningham said, “This  survey highlights many insurance firms are getting measures in place for the new Senior Management and Certification Regime, but it also highlights a worrying lack of awareness for many insurance brokers.

“We are here to support any organisation with training and guidance around compliance, governance and speak up arrangements and do a great deal of work with the FS sector. Good governance ultimately helps to raise standards and accountability”.