#govconf13 ©pcaw 2013 - 00 44 20 7404 6609 belfast 22 november 2013

#GovConf13

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Belfast

22 November 2013

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Whistleblowing headlines

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SEC Whistleblower Rewards: Larger Ones Are Coming

Over the past fe

w weeks, Securities and Exchange Commission officials

have been making a very public effort to assure whistleblowers that th

e

first two whistleblower awards – both relatively small —

won’t be typical of

the SEC’s whistleblower reward program.

26 June 2013

Forbes

He has published US government information. And it is for this – not espionage – that he will have to answer to the law.

2 July 2013The Guardian

Whistleblowing headlines

Edward Snowden: a whistleblower, not a spy

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Ryanair sacks pilot over Channel 4 Dispatches Programme

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PCaW definition:

Raising a concern about wrongdoing, risk or malpractice with someone in authority either internally and/or externally (i.e. regulators, media, MPs)

What is Whistleblowing?

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PCaW is an independent charity, founded in 1993. We provide:

free confidential advice to those concerned about wrongdoing in the workplace who are unsure whether or how to raise their concern

train organisations on policy and law of whistleblowing

campaign on public policy, and

promote public interest whistleblowing laws.

Public Concern at Work

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Helpline – our approach

What is the risk?

Who do you want to tell?

What is stopping you?

Bullying

Ulterior motive

Professional duty

Personal involvement


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Advice Line - statistics

Circa 25,000 requests for advice. Advised nearly 16,000 whistleblowers to date. Over 2500 new cases so far in 2013

Source: PCaW


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35% are public, 44% private and the remainder voluntary sector or unknown

Source: PCaW


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Breakdown of types of wrongdoing

Source: PCaW


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Experience of whistleblowers

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Keep quiet?

Go Outside?

Raise internally?

A concern about

malpractice

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The dilemma

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83% of workers blow the whistle up to two times, usually internally.

15% of whistleblowers raise a concern externally. Even on the third attempt, 60% persevere with the internal option. Only 22 individuals raised a concern four or more times. Half of these went outside their organisation

74% of whistleblowers say nothing is done about the wrongdoing.

60% of whistleblowers receive no response from management, either negative or positive.

The Inside Story: research headlines

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The most likely response is formal action (disciplinary or demotion) (19%).

15% of whistleblowers are dismissed.

Senior whistleblowers are more likely to be dismissed.

Newer employees are most likely to blow the whistle (39% have less than two years' service).

The Inside Story: research headlines

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More than three quarters (77%) of whistleblowers from the financial services industry are ignored when they first raise concerns

Almost one in five whistleblowers from the sector (18%) go straight to external regulators.

Only 37% of workers raised a concern more than once. After the first attempt, four in ten (39%) went to external regulators, this compares to just 11% across all industries.

Further findings demonstrate that workers’ lack of trust in their superiors may be well-founded: of those that reported a response from management, 42% reported being dismissed after raising a concern once. This compares to 24% from across all industries.

Silence in the City?: research headlines

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Public Concern at Work YouGov Survey 2013

• In the last two years, 1 in 10 workers said they had a concern about possible corruption, danger or serious malpractice at work that threatens them, their employer, colleagues or members of the public

• Two thirds raised their concern with their employer

• 83% said if they had a concern about possible corruption, danger or serious malpractice at work they would raise it with their employers

• 72% view the term whistleblower as positive or neutral

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Public Concern at Work YouGov Survey 2013

• 31% of respondents said if they had a concern nothing would stop them from raising it with their employer but others highlighted the following barriers to raising a concern:

o fear of reprisal (22%); o worry about what the response of colleagues would be (22%); o if managers were involved in the wrongdoing (21%); o fear of being identified (19%); o the belief that it wouldn’t be dealt with appropriately (20%), or that it wouldn’t make a

difference (i.e. no action would be taken) (20%); o fear of damage to their career (21%)

• 42% of workers said their employers have a whistleblowing policy compared with 29% in 2007

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93% of respondents said they have formal whistleblowing arrangements in place

But 1 in 3 think their whistleblowing arrangements are not effective

54% said they do not train key members of staff designated to receive concerns

44% confuse personal complaints with whistleblowing

1 in 10 say their arrangements are not clearly endorsed by senior management

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Survey of UK organisations

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All too often the inquiries into these disasters and scandals have shown that staff knew of the dangers before any damage was done but had:

been too scared to speak up;

spoken to the wrong people; or

raised the matter only to be ignored.

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The missed message

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Promotes and protects open whistleblowing

Tiered disclosure regime, which emphasisesinternal whistleblowing, regulatory oversight and recognises wider accountability

Signals a change in the culture

International benchmark

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The Public Interest Disclosure Act 1998

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Lord Nolan’s praise for ‘so skilfully achieving the essential but delicate balance between the public interest and the interest of the employers’.

The Public Interest Disclosure Act 1998

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Applies to almost every worker

Wide definition of wrongdoing

Application overseas

Burden of proof reversal

Full compensation

Impacts on gagging clauses and secrecy offences

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The scope of PIDA

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The following changes came into force on 25 June 2013. For consultation in Northern Ireland.

Public interest test to replace good faith test for a disclosure to be

“protected” under PIDA

Good faith will only be relevant to compensation when a claim is won

(the tribunal may deduct up to 25% of the compensation if found the

claimant made the disclosure in bad faith)

Liability for co-workers who victimise whistleblowers.

Employers can be held vicariously liable for these employees.

Reasonable steps defence for employers.

Changes to PIDA

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Good whistleblowing arrangements provide staff with a clear message that there is a safe alternative to silence. They:

Deter wrongdoing

Detect wrongdoing early

Make management work

Demonstrate an accountable organisation

Good governance

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1. Lead from the top – taking malpractice seriously and distinguishing a whistleblowing concern from a grievance.

2. Option to raise concerns outside of line management.

3. Access to confidential advice from an independent body.

4. Respect the confidentiality of a member of staff raising a concern when requested.

5. Clear about when and how concerns may properly be raised outside the organisation (e.g. with a regulator).

6. Victimisation of a bona fide whistleblower (even when mistaken) is a disciplinary offence as it is for someone to deliberately make a false allegation.

7. Audit, review and public reporting?

Good whistleblowing policy

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Grievances Concerns

risk is to self risk is to others

need to prove case tip off or witness

rigid process pragmatic approach

legal determination accountability

private redress public interest

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Grievances and Concerns

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Ask yourself if your policy

Gives employee confidence on whether / how to raise a whistleblowing concern

Is helpful to a manager confronted with a difficult whistleblowing concern

Offers Assurance to Board / regulator that staff are encouraged to raise any significant issues

Policy messages

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1. Lead from the top (designated responsibility for oversight and day-to-day management)

2. Policy conforms to good practice

3. Consultation with staff

4. Promotion, communication and confidence

5. Training of designated officers and managers

6. Logging

7. Audit and review (numbers, type, outcome, feedback from whistleblowers and staff trust and confidence)

Good whistleblowing arrangements

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1. ATTITUDES TO WHISTLEBLOWING

From individuals, organisations and wider society

2. LAW AND POLICY

Is it adequate and effective?

3. REGULATORS

Should they be doing more?

4. REWARDS

How can whistleblowing be incentivised?

5. TRIBUNALS

Are they protecting whistleblowers and society at large?

Please visit www.pcaw.org.uk/whistleblowing-commission

The Whistleblowing Commission

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