When staff raise concerns about what is happening in their workplace, managers should not respond with a kneejerk threat of dismissal. Have a whistleblowing policy in place and be sure of all the facts, advises Jane Hobson
Whistleblowing is defined as the disclosure by an individual, to the public or those in authority, of mismanagement, corruption, illegality or some other wrongdoing in the workplace.
Such disclosures can have far-reaching consequences for employer and employee alike. The case of Margaret Haywood highlights this - she was struck off after secretly filming examples of neglect of patients in a Brighton hospital. Even though she approached her ward manager with her concerns before going public, Ms Haywood was punished for breaching patient confidentiality.
Cases such as these and the events earlier this year at Mid Staffordshire foundation trust have led to calls for the government to provide more comprehensive legislation to protect whistleblowers, while others demand that trusts have mechanisms to guarantee employees’ concerns will be properly addressed. So against this backdrop, how do employers in the health service manage whistleblowing?
Problem solved: threats defused
Client: A trust
Problem: A member of staff who had already raised concerns with her manager about the standards of cleanliness in the hospital where she worked threatened to quit her job and go to the press unless she was given a pay rise.
Objective: To minimise bad publicity and negotiate a way to keep the employee as a member of staff without submitting to her demands for a pay rise.
Action: Firm requested that the employee set out details of her concerns in writing to the employer, just in the same way as with a grievance. We asked her to detail as far as possible the dates she raised her concerns and the identity of the person she spoke to.
The employer undertook a full investigation as to the circumstances and reported back to the employee as to the findings and relevant action points. A problem was highlighted and the employee was thanked for raising the matter and urged to act in a similar manner in the future.
Employers should think carefully before following the trend of recent cases in the media and immediately dismissing employees who disclose failings.
Under the Public Interest Disclosure Act 1998 (the so-called “Whistleblowers Act”), which provides protection for workers who report malpractices by their employers or third parties against victimisation or dismissal, employees do not even have to complete the usual one year qualifying service requirement to pursue a claim for unfair dismissal and can recover unlimited compensation.
It is therefore important NHS employers ensure they bring in their own whistleblowing policies to encourage internal disclosure and resolution of issues before a claim for unfair dismissal is brought.
Whistleblowing policy tips
- Ensure you put in place a comprehensive whistleblowing policy
- Communicate this policy to your staff so all employees are clear about who they can go to with their concerns and how those concerns will be dealt with
- Emphasise that genuine concerns will be addressed
- Do not threaten whistleblowers with dismissal. If their concerns are unjustified, they are still entitled to voice them. If they are not unjustified, you should act on them fast
- If you fire whistleblowers for something other than their disclosure (gross misconduct, for example), ensure that you have properly documented the evidence and reasons for dismissal. This will protect you should the employee later claim unfair dismissal and cite whistleblowing as a defence
Under the act, when identifying examples of malpractice (including, for example, criminal offences, breaches of legal obligations and dangers to health and safety) employees are encouraged in the first instance to disclose them internally to their employers.
The employer must therefore not only have a policy in place, but also ensure that it is communicated to all staff so that it is clear who they should go to with concerns, and that matters raised in good faith will be taken seriously and investigated thoroughly. Staff also need to be reassured that they will not face reprisals - this will reduce the risk of external disclosures and the associated poor publicity.
The Conservatives have called for new laws to allow NHS staff to report concerns easily and anonymously, so a change in government could lead to an extension of legislation. l
Jane Hobson is a partner in the employment team at Weightmans.