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OECD

17 June 2014

Charity calls results of NAO assessment 'troubling' after Cabinet Office, which sets whistleblowing policy, comes bottom 16 January 2014 The Guardian

Headlines

Cabinet Office and Treasury trail in government whistleblowing report

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Edward Snowden: a whistleblower, not a spy He has published US government information. And it is for this – not espionage – that he will have to answer to the law. 2 July 2013

The Guardian

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©PCaW 2014 - 00 44 20 7404 6609

83% of workers blow the whistle up to two times, usually internally. • Small window of opportunity to address wrongdoing • Importance of front line and middle management training

3 out of 4 whistleblowers say nothing is done about

the concern raised • No response, is a response • May lead to a silent or wilfully blind workforce

The Inside Story: research headlines

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60% of whistleblowers do not suffer reprisal. Of the remaining, 15% are dismissed. • Disproportionate fear of dismissal • Zero tolerance of the victimisation of whistleblowers

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

The Inside Story: research headlines

EY Survey headlines

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

But 1 in 3 think their whistleblowing arrangements are ineffective

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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YouGov Survey headlines

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 of workers raised their concern

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

42% of workers said their employers have a whistleblowing policy

72% of workers view the term whistleblower as positive or neutral

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©PCaW 2014 - 00 44 20 7404 6609

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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The following changes came into force on 25 June 2013

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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• Accountability and role of regulators – note widening scope for complaints ombudsmen

• Review mechanisms – virtually non existent, except for after full Employment Tribunal hearing

• Gagging – need better provisions and guidance – area with much confusion and despite 15 years of PIDA no legal testing

• Changes to scope of those covered (akin to equality laws) – recent case in Supreme Court affecting partnerships

• Simplification of provisions focussing on the public interest

• Code of Practice – organisations and regulators

Failures or areas for reform

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©PCaW 2014 - 00 44 20 7404 6609

• The Secretary of State to adopt the Commission’s Code of Practice.

• This Code of Practice to be taken into account by courts and tribunals when whistleblowing issues arise.

• Regulators to require or encourage the adoption of this Code of Practice by those they regulate.

• Regulators to be more transparent about their own whistleblowing arrangements.

• Specific provisions against the blacklisting of whistleblowers

• Strengthening anti-gagging provisions in the law

• Specialist training for tribunal members to handle whistleblowing claims effectively

• Strengthening and clarifying the legal protection for whistleblowers

Whistleblowing Commission: Key Recommendations

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Consultation employers, staff and representatives

Create whistleblowing arrangements that are: • Clear • Accessible • Well-publicised

Whistleblowing Commission Code of Practice

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Identify types of concerns, giving relevant examples

Include a list of persons and bodies with whom concerns can be raised with: •line managers •senior managers •identified senior executive/ board members •relevant regulators

Assurance that: •Victimisation will not be tolerated •Confidentiality maintained where requested

Code of Practice Written Procedures

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Require that a worker raising a concern is: •Told how and by whom the concern will be handled •Given an estimate of how long investigation will take •Told, where appropriate, the outcome of investigation •Told how to report complaints of victimisation •Entitled to independent advice

Code of Practice Written Procedures

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Employers should:

•Sanction those who victimise whistleblowers

•Identify how and when concerns should be raised

•Identify who has overall responsibility for the effective implementation of the whistleblowing arrangements

•Independent oversight and review of the whistleblowing arrangements by the Board, the Audit or Risk Committee or equivalent body

•Include information about whistleblowing in annual reports

Code of Practice Putting it into practice

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Conduct periodic audits of effectiveness of whistleblowing arrangements: •The number and types of concerns raised and outcomes of investigations •Feedback from individuals who have used the arrangements •Complaints of victimisation •Complaints of failure to maintain confidentiality •Other existing reporting mechanisms •Adverse incidents that could have been identified by staff (eg consumer complaints, publicity or wrongdoing identified by third parties) •Any relevant litigation •Staff awareness, trust and confidence in arrangements

Code of Practice Audit and Oversight

Cathy James cj@pcaw.org.uk 0203 117 2520

Further information at www.pcaw.org.uk

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