Many local authority whistleblowing policies are not in line with the law

HR must now review their practices to ensure employees are not discouraged from making a protected disclosure, says Brian Moore

Many local authority whistleblowing policies are not in line with the law

The UK legislation protecting whistleblowers, the Public Interest Disclosure Act 1998 (PIDA), has been in force since 1999, so one might expect to find a high level of compliance with its requirements. However, recent research has arrived at some unsettling conclusions.

Under the Public Interest Disclosure (Prescribed Persons) Order 2014, and equivalent legislation in the devolved administrations, local authorities were designated prescribed persons – entities to which internal or external whistleblowers can make protected disclosures about suspected malpractice relating to health and safety, food safety and product safety. The law also protects whistleblowers, safeguarding their interests before any future employment tribunal if they suffer a detriment or dismissal by their employer as a result of their disclosure.

PIDA required a protected disclosure to have been made in ‘good faith’. However, this requirement was changed by the Enterprise and Regulatory Reform Act 2013 (ERRA), and the primary test at a tribunal became whether a disclosure is in the public interest. A tribunal can still reduce any compensation it may award if it decides personal gain was a factor, but that is a matter for the tribunal, not the worker’s employer.

As part of my research, I examined the content of whistleblower policies and procedures available on local authorities’ websites, and those provided by 10 local authorities following freedom of information (FOI) requests, to see whether they complied with PIDA and the removal of the ‘good faith’ requirement brought in by ERRA.

The research found that, some seven years after ERRA, almost 55 per cent of policies (223 out of 409 local authorities) still advised good faith was required before a whistleblower could raise a concern under its procedure. Some policies told workers: “If you have raised a concern in good faith you will not be subject to any detrimental action”; others “reassure you that you will be protected from possible reprisals or victimisation for whistleblowing in good faith”.

With that onus, how likely is it that a whistleblower may be put off raising their concern if they are led to believe their motivation – and not the public interest case – could be explored by the council?

My research also found that 45 per cent of local authorities were prepared to invoke their disciplinary procedure if they believed a whistleblower’s motivation for making a disclosure was for personal gain – even where the disclosure may be factually correct and has a public interest benefit. “If we conclude that a whistleblower has made false allegations maliciously or with a view to personal gain, the whistleblower will be subject to disciplinary action,” one policy, updated in March 2019, said.

PIDA has sympathy with the view that workers should not gain personally from whistleblowing – section 43G(1)(c) provides: “A qualifying disclosure is made in accordance with this section if… he does not make the disclosure for purposes of personal gain.” But neither PIDA nor ERRA provides justification for local authorities threatening disciplinary action against workers making a disclosure that may be true.

There is also the question of what constitutes personal gain – of the 330 local authorities that responded to an FOI, not one of them said they offered a bounty or reward for making a disclosure.

Let's consider a hypothetical situation in which a senior manager responsible for distributing PPE to frontline staff directs that equipment should be reused, exposing staff and clients to unnecessary risk. If an ambitious junior manager blows the whistle, believing that doing so will clear the way for promotion, under the policies of some local authorities they could face disciplinary action. But what if the junior manager was simply concerned the information would ‘get out’ and they would find themselves in trouble for not reporting the senior manager? By blowing the whistle it could be argued that they stand to gain by keeping their job, so any uncertainty about possible disciplinary action could inhibit the raising of concerns. While a wholly contrived scenario, it illustrates the adverse effect of a policy position that goes much further than the primary legislation.

My research found that more than half (223 or 54.5 per cent) of local authorities’ policies/procedures mentioned ‘good faith’ and 186 (45.5 per cent) referenced disciplinary action over disclosures made for personal gain. In all, 120 (29.3 per cent) included reference to both ‘good faith’ and personal gain ‘discipline’. Just 107 policies (26.1 per cent) did not include either category and could be said to be compliant with PIDA and ERRA.

Basic consistency with the legislation appears to be lacking in the majority of published local authority whistleblower policies. There is no obvious reason for the continuing presence of the good faith criterion removed by ERRA in 2013, especially as many policies have been reviewed at different times since then. More significant is the number of local authorities prepared to resort to discipline where personal gain is the suspected motivation. The addition of a punitive clause in some policies exacerbates the risks of blowing the whistle, and could deter many from doing so.

Given the importance of our councils in local community life, and particularly given their role as prescribed persons, the public may wish greater assurance that these responsibilities are subject to regular, independent scrutiny. Dr Philippa Whitford’s 2020 private member’s bill proposes the establishment of a whistleblowing commission to oversee the functioning of prescribed persons.

However, in the short term HR professionals working for local authorities should look again at their whistleblowing policies to ensure that the letter, as well as the spirit, of parliament’s intentions are observed. This may not prove easy, but this research provides some evidence that may make the gain worth the pain.

Brian Moore is a doctoral candidate in the department of law and politics at Middlesex University