The compelling case for a national

Office for the Whistleblower


Introduction

Society is growing increasingly concerned about the way whistleblowers are treated in our country.

We recognise that successive governments have acknowledged the importance of whistleblowers and have taken some steps to try to encourage them to speak out, the introduction of helplines being a very visible recognition of the problem. However, we know from the work that we do that current legislation and frameworks do not go far enough to achieve the success we believe we all seek.

We know that whistleblowers have a key role to play in an open and transparent society. This is demonstrated by the exposure of criminal wrongdoing that has led to multiple convictions, for example in the Rotherham and the HBOS Reading cases. Key whistleblowers in both these cases report ongoing retaliation and victimisation.

The system of regulators operating within their sectors without co-ordination, control and, crucially, independent oversight to ensure proper accountability, is simply not working well enough to deliver just outcomes.

We offer a number of detailed solutions designed to bridge the gap between the problems outlined and success as described.  These solutions, largely and preferably involving legislative change, will positively impact on each level (workers, employers, regulators and the courts), with some interaction between the levels, but provide only necessary not sufficient answers to creating the success we seek.  Our experience of organisational and cultural change is that it can only be achieved with a combination of leadership, self-interest, education and enforcement.

We identify a critical problem, the lack of effective high-level, co-ordinating leadership.

We therefore propose a simple, unifying and key catalyst for change; the creation of a national Office for the Whistleblower (OftW) to protect, advise and support whistleblowers by overseeing, co-ordinating, setting standards and holding to account the regulators and employers.

The Office will not investigate cases of whistleblowing; rather it will ensure that cases are properly investigated by existing bodies in accordance with agreed procedures.  It will also identify failings, successes and propose improvements.

Our detailed proposals

Our proposals are as follows:

WBUK proposals for changes to the law

We seek change because we see at first hand the failure of organisations and their regulatory bodies adequately to

1.     encourage speaking out;

2.     support those who do speak out and

3.     hold to account those who act unlawfully.

We also seek change because the legal system is heavily biased against whistleblowers in terms of financial resources and procedures. 

We also seek change because crimes and wrong-doing go undetected and unpunished when people do not come forward to report them for fear of reprisals.  Even when they are reported the original allegations are often ignored in favour of pursuing the whistleblower.

We propose five significant changes to address these problems.

1.     The Office for the Whistleblower

We believe that this is the key proposal that is necessary to achieve real and long-lasting change.  Once this Office is in place it will generate the reliable evidence needed to support government action across the board.  

Current regulatory bodies do not adequately support whistleblowers or hold wrong-doers to account.  In our experience regulatory bodies, e.g. Police, Financial Conduct Authority, do not provide adequate support for whistleblowers nor do they hold those who act unlawfully against whistleblowers sufficiently to account.

Even the recent change in the NHS, the creation of the National Guardian’s Office, has by no means rectified the situation.

We propose a largely self-funding independent organisation (this is optional as, although very possible, government funding would be simpler), reporting to the Home Office (to be determined) that acts on behalf of all potential and actual whistleblowers. 

The Office would have statutory powers to carry out its functions, including access to all relevant documentation, etc., and act as the overseer of all regulatory bodies dealing with cases of whistleblowing.

The Office would:

a.     Register potential or actual whistleblowers and set up an initial case file;

b.     Provide initial advice re. the law and best practice to secure evidence;

c.      Maintain a panel of accredited law firms to act on behalf of whistleblowers;

d.     Maintain a fund financially to support whistleblowers in case of need;

e.     Disburse funds to whistleblowers recognising the benefits to society;

f.       Monitor progress of cases and intervene when needed;

g.     Monitor the actions of the regulatory bodies;

h.     Monitor the investigation into the original allegations (it would not conduct investigations itself);

i.      Monitor the investigations into those who might have acted unlawfully against whistleblowers;

j.      Obtain funds from a minimum statutory grant and compensation from organisations that have treated whistleblowers unlawfully;

k.     Report concerns as they arise;

l.      Keep and analyse statistics and

m.    Report annually.

The Office for the Whistleblower will create transparency where currently there is secrecy and cover-up and will, by publishing its activities and findings, enable the public to become aware of the problems faced by whistleblowers and the activities of those who seek to persecute them.

2.    Specialist Tribunals

Almost all whistle-blowing cases are dealt with in Employment Tribunals as cases of wrongful dismissal.  These tribunals do not have the specialist expertise and knowledge adequately to determine just outcomes in whistle-blowing cases.

We propose specialist training and accreditation of lawyers and Tribunal members before they are allowed to sit in judgement of cases involving Protected Disclosures.

3.    Additional damages

In many cases the compensation paid is limited solely to that relevant to employment and does not take into account the often considerable personal and financial hardships suffered as a result of the behaviour of the management of the organisation.

We propose that Tribunals should award exemplary damages additional to that reflecting loss of earnings and future opportunities, as recognition of the unlawful detriments caused.

4. Criminal sanctions for those who act unlawfully against whistleblowers

Under the current law whistleblowers are entitled to present a complaint to an employment tribunal that they have been subjected to a detriment if they suffer detriment[1] as a result of making protected disclosures[2].  In practice this is often of little value as the costs of litigation are so high and the awards in tribunals relatively low.

There are no sanctions for those who cause the detriment other than the possibility of litigation costs and financial penalties imposed on the organisation at a tribunal.  There is no personal responsibility for wrong-doing.  It seems that senior staff are able to cause detriment to whistleblowers with impunity, and they do.

We propose a new offence be created of causing detriment to people who have made protected disclosures, punishable by a substantial fine and/or imprisonment and the power to order compensation be paid to the whistleblower.  This compensation to be paid by the convicted person and is different from other compensation awarded to the whistleblower.

5.    Compensation for whistleblowers

Whistleblowers often suffer great hardship, financially and in their personal lives. It is very important that they should receive full compensation for this detriment.

We should also recognise that they have brought to light criminal activity or wrong-doing that will have resulted in benefits to individuals and society as a whole.  For example, protection of the vulnerable from abuse, fraud prevention, tax recovery and exposing corrupt practices. These actions that benefit society should be encouraged and recognised by way of financial compensation, and perhaps other forms of recognition, separate from that awarded by the tribunals.  The amount can be determined by the Office for the Whistleblower from its funds.  Other awards are determined in the usual way.

 

These proposals are intended to challenge the secrecy that obscures whistleblower cases, ensure regulatory bodies do their jobs effectively, add expertise to relevant legal processes, bring to account those who persecute whistleblowers and ensure whistleblowers are properly recognised for their selflessness and sacrifice in speaking up about crimes and injustice.

Transparency and accountability are cornerstones of a fair society.