first_img Comments are closed. Blowing the whistleOn 1 Dec 2002 in Personnel Today Staff are well protected in law when they draw attention to workplacemalpractice and, as recent case law shows, failure to investigate can landemployers in hot water. Phil Boucher reportsWhistleblowing in the workplace is legally sanctioned under the PublicInterest and Disclosure Act 1999. This is largely an amendment to theEmployment Rights Act 1996, and protects people who have found instances ofworkplace malpractice and wish to make them selves heard. The organisation concerned is obliged to investigate the matter fully and isrestricted from reprimanding or victimising a whistleblower in any way. The legislation itself was introduced in the wake of high-profile cases suchas the North Wales child abuse scandal and inquiry into baby deaths at BristolRoyal Infirmary. An investigation into the Bristol case found the infirmarysuffered from a culture of silence and a tendency to close ranks. To blow thewhistle, the individual had also fought against a hierarchy described as”inhibited”. Despite the fact two surgeons and a senior doctor administrator wereeventually found guilty of serious professional misconduct, the whistleblowinghappened later than it could have because a coherent disclosure policy was notin place. The PIDA was designed to remove this major sticking point by providing aframework for reporting workplace malpractice. In reality, while most employers do not deal with the life and deathsituations of a major city hospital, similar cultures remain in place in manyparts of the business world. Many organisations do not even have a coherentdisclosure policy in place. A recent case involving the European Commission highlights the difficultiesemployees still face in attempting to raise concerns within an organisation.Marta Andreasen, the Commission’s chief accountant, recently spoke out in thepress about “Enron-style” accounting practices in the EU’s £63bnbudget. She had been asked to sign off the 2001 budget, even though she had not beenworking for the Commission at that time and had grave doubts about thereliability of the computer systems. Mrs Andreasen had been shocked to discoverthe EU did not have double-entry bookkeeping when she joined in January 2002,and feared funds could be diverted without leaving an electronic fingerprint. When Andreasen brought her worries to the attention of her superiors inEuropean Commissioner Neil Kinnock’s office, she claimed they were ignored, andthat out of frustration she then contacted the Court of Auditors and some MEPs.Kinnock’s actions were first to move her to another job, then invokedisciplinary proceedings, and finally to suspend her in August 2002. He alsoclaimed Andreasen violated staff rules by defaming her superiors, bringingdisrepute on the Commission and violating hierarchy lines. According toKinnock, Andreasen should have signed the 2001 books and attached a reservationnote to show her concern. Finally, Andreasen took her worries to an outside party. Although Kinnockhas claimed she is making wild allegations, it is unlikely he would have had tocomment at all if a trusted disclosure path had been made available andfollowed up with investigation. Marcus Rowland, solicitor at law firm Kemp Little, explains: “You mighthave a procedure in place but it might not do you any good. If the employee isnot interested in using it or does not trust that it will work, there is not alot you can do to stop them going to an outside source.” It is in the organisation’s interests that a disclosure policy encouragespotential whistleblowers to stay in-house as far as possible. The best way ofdoing this is to make it clear that a worker will not suffer a detriment ifthey make an internal disclosure. People need to know how, where and to whomthey can make a disclosure. The recent case of Fernandes v Netcom Consultants, 18 May 2000, shows whatcan happen if these steps are not followed. Fernandes, who was the chief financial officer responsible for the accountsof computer firm Netcom and two sister companies based in the UK, queried theexpense accounts of his MD and sent a letter to board members in the UK,Luxembourg and the US. He was told to remain at home on the same day, pending an investigation bythe US parent company. Within a week, he had been interrogated twice by a US securityman and once by the chief executive of the US company. Further, he was askedduring two telephone conversations to resign, and the second time wasthreatened with criminal prosecution. Less than two weeks after disclosing his concerns, Fernandes was dismissedfor gross misconduct. One reason given was that he had allowed themisappropriation of £316,000 in authorised expenses by the MD. The MD kept hisjob, however. A full tribunal hearing found the reasons given for the dismissal were asmokescreen and Fernandes had been dismissed because of his concerns about thefinancial malpractice of his employers. He was awarded record compensation of£293,441. This shows just how much protection a whistleblower has under PIDA – and howcostly arrogance in the boardroom can be. Elaine Aarons, partner at Eversheds,says: “If employers carry out an investigation into whistleblowing, theyhave to get the fundamentals right. Any conclusions drawn from an investigationwill be undermined if those conducting it could be said to be biased, or ifcertain individuals who should be interviewed in the course of theinvestigation are left out.” Sue Nickson, head of employment law at Hammond Suddards Edge, agrees:”I would emphasise the need to take care in treating the concernsseriously, and being open about the response,” she said. In most cases, organisations won’t take the heavy-handed approach favouredby Netcom. But those that do should be aware that compensation is unlimited.Whistleblowers also have a very broad protection afforded to them under thePIDA. There is no minimum length of service requirement, and any dismissal isautomatically treated as unfair. Confidentiality clauses in employmentcontracts and severance packages are also void if they preclude a protecteddisclosure. The case of Dr Jennifer Colman also highlights the sort of difficulties thatcan arise when employers fail to follow the necessary procedures. Colmanrecently issued a £5m writ against the General Medical Council for a whisperingcampaign she believes started when she blew the whistle on alleged financialabuses. She says she has not been asked to perform any service for the GMCsince she made the disclosure and has effectively been prevented from workingas a result. In a separate claim, she also maintains that the GMC breached the DataProtection Act by destroying documents and disparaging e-mails about her aftershe demanded they be handed over. Colman is currently claiming loss ofearnings; injury to her feelings and reputation, and aggravated damages. TheGMC is conducting a review of her position, which has already run up £150,000in costs. All this points to a breakdown in communication. Rachel Heenan, barristerand associate at Beechcroft Wansbroughs, explains: “You have to givefeedback to the member of staff who has raised the concerns about what theemployer proposes to do and the final result of any investigation. If you leavethem out in the cold, they will feel vulnerable.” The outcome of this case has yet to be decided. It may even transpire thatColman has no grounds for her complaints. But by keeping her in the dark, theGMC has simply made a bad situation worse. It has also failed to foster the element of trust so crucial in containing andmanaging a disclosure successfully. The best way of doing this is byimplementing a procedure that is secure and which deters employees from hangingtheir washing outside to be aired. Find out more… on the PIDA at www.pcaw.org.ukWho is protected under the PIDA?The Public Interest Disclosure Actapplies to anyone who is genuinely concerned about an organisation’s workingpractices, whether permanent staff, agency workers, contractors, trainees orhomeworkers. All professionals in the NHS are also covered by the Act.The only people currently uncovered by its provisions arevolunteers, members of the intelligence services, the Army, police officers andthe self-employed.Under the PIDA, employees can speak out about any criminal andcivil offence they witness, including negligence, breach of contract, breach ofadministration law, miscarriage of justice, danger to health & safety orthe environment. They are also protected if the organisation has tried to coverup an offence, the information is confidential or the malpractice extends toactions overseas.To protect the individuals concerned the Act confirms thatworkers can safely seek legal advice on any concerns they have aboutmalpractice. A disclosure in good faith to a manager or the employer also hasto be protected if the whistle- blower has a reasonable suspicion that themalpractice has occurred, is occurring or is likely to occur. This does not mean workers have to keep things in-house. Widerdisclosures to such people as the media, police and MPs are also protected incertain circumstances – most notably, if the individual believes that aninternal disclosure will result in them being victimised.When this happens a tribunal will assess the identity of theperson the wider disclosure is made to, the seriousness of the concern andwhether the risk or danger remains.Do– Have a clear procedure that staffcan follow if they want to make a disclosure – Publicise the protection that PIDA gives to employees– Stress that you will not shoot the messenger– Investigate the matter fully and without prejudice– Train staff who are likely to be involved in operating theprocedureDon’t– Take any form of disciplinaryaction against an employee who has made or wants to make a disclosure– Force staff to make their disclosure to a third party such asthe press– Keep the results of investigations secret from thewhistleblower– Sweep the issue under the carpet and hope it will go away– Encourage a culture where whistleblowing is frowned upon Previous Article Next Article Related posts:No related photos.last_img

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