12th January 2015

Whistleblowing in the Healthcare Industry – How to act pro-actively avoid ‘whistleblowing’ problems with employees.

‘Whistleblowing’ has come to be known as the expression for the reporting of acts of wrongdoing, either to an employer or to a third party. The law is contained within two main statutes – the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998.

Basically, the protection provided under the law is that employees have a right not to be dismissed for making a ‘protected disclosure’. This is anything showing a breach of law, misconduct, a miscarriage of justice, breach of health and safety, or a concealment of any of these matters. A disclosure must be made ‘in good faith’, i.e. genuinely motivated. If made to a third party, it should be to an appropriate body or regulator.

A dismissal on grounds of whistleblowing will be automatically unfair even though the employee has not served the usual minimum two-year period of employment. Potential compensation would be theoretically unlimited, unlike ‘ordinary’ unfair dismissal claims.

Whistleblowing is a potentially serious issue particularly affecting the healthcare industry. There have been widely reported stories this year of how standards within the healthcare profession, both the NHS and the private sector, have fallen short. Attempts by employers and managers to reduce the negative publicity of embarrassing failures have backfired spectacularly, with reports of large pay-offs in compromise agreements at public expense, causing considerable outrage in the public mind.

So back to the main question: how can whistleblowing issues be reduced in the first place? The first way is to have an internal whistleblowing policy in place which is available to all employees, perhaps incorporated in the staff handbook, encouraging employees who have genuine concerns which may amount to a whistleblowing issue, to raise their concerns with specific named manager. The importance of remedying wrongdoing should be stated, and a means of bypassing the direct manager should be given.

The benefits and objectives of a clear policy are that:

1. A culture is encouraged where concerns are reported internally at the earliest possible stage. The seriousness and importance that the employer attaches to remedying wrongdoing is conveyed.
2. Disclosure to the media without following a written procedure will be less likely to be deemed to be a ‘protected disclosure’. The risk of litigation, resulting in huge costs and irreparable long-term reputational damage is substantively reduced.
3. You can emphasise the fact that the making of malicious allegations, as well as the victimisation of genuine whistleblowers, will be treated as a serious disciplinary matter.

Overall responsibility for whistleblowing can rest with the board, CEO, secretary, and/or audit committee of a limited company or plc. Having a policy which is not just ‘standardised’, and which has involved some input from employees’ representatives, is more likely to be accepted and have confidence of workers. It is generally thought that the over-legalistic wording of the relevant statutes are not necessarily the best format for an internal policy. Potential improvements are the use of wording such as allowing for disclosure whenever an employee has a “reasonable suspicion” or even just an “honest concern” about suspected wrongdoing. You may need particular advice on how your policy should be worded, given the nature, size, resources and other circumstances of your business.

Ideally, there should be higher executive who acts as an internal appeal source for those who are considering ‘blowing the whistle’. This is in a similar way to the grievance procedure that well-run companies will have in place as well to deal with grievances.

Wherever possible, whistleblowers should be assured of the protection of confidentiality and anonymity so that any repercussions to them in relation to the allegations made can be avoided if that is a matter of concern for them. This may not always be possible due to the strong need for the person(s) who is effectively being incriminated being allowed to know the evidence against them.

The Data Protection Act 1998 provides for protection for the processing of employees’ sensitive personal data by employers, and this will include information held in the course of a whistleblowing investigation. Again, this is an area where specialist advice may prove to be fruitful. A breach of the mandatory requirements of the Act could be very damaging, resulting in civil and criminal sanctions.

Negative stories over the last few years about badly-run care homes splattered across the national media have resulted in the bankruptcies of some businesses in the health sector.

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