Whistleblowing: dos and don’ts for employers

In light of a recent tribunal, Paul Ryman and Katie Garcia explain how to avoid legal claims when situations involving protected disclosures arise

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A nurse sacked after speaking out about a patient’s death has won a record £460,000 payout after an employment tribunal found there was ‘close proximity’ between her launching a whistleblowing process and the trust’s decision to dismiss her for gross misconduct. 

There are several dos and don’ts when an employee requests to instigate a formal whistleblowing process – and suspending them without merit should never happen. 

For a qualifying disclosure to be protected, the worker must make it by a permitted method, which includes disclosure to the employer. The worker must also have a reasonable belief that the disclosure is in the public interest; a requirement that is commonly misunderstood with claimant’s raising their own personal grievances under the guise of a whistleblowing claim.

But in this recent high-profile case, the employer, North Tees and Hartlepool NHS Trust, was found to have breached the legal protection this should afford under whistleblowing law which is located in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998). 

The trust appeared to use suspension, and eventual dismissal, to hush the serious concerns raised by Linda Fairhall around patient care. These centred on the impact of increased workloads, matters alleging that the health or safety of patients and staff was, or was likely to be, put at risk, and employee stress and sickness.

With most recent stats indicating that whistleblowing concerns are on the increase, up from just over 7,000 during 2018 to 12,000 during 2019 in the NHS alone, HR teams need to be proactive around whistleblowing by strengthening education, awareness, policy and procedures.

Whistleblowing protections

In 2019, the then-health secretary Matt Hancock called for greater support to be provided to NHS whistleblowers as part of an effort to foster greater trust in the health service. It was recognised that HR and organisational development teams would play a key role in supporting this.

Fast forward to present day however and it feels as though little has changed. There are several long-running legal cases and examples of NHS trusts mishandling whistleblowing claims and forcing out or dismissing staff who attempted to improve patient safety, health outcomes, encourage transparency and formulate solutions.

It means that taxpayers are funding employment tribunals involving NHS whistleblowers and unfair dismissal claims, which are taking years to progress due to current backlogs in the courts.

This can prove exceptionally expensive given that whistleblowing claims can result in uncapped damages for career financial losses if successful. There is also the risk these cases further damage the NHS’s employer brand and negatively impact recruitment and retention efforts. 

It is vital that HR teams implement watertight policies and procedures from the ground up so that employees, management and senior teams are aware of how staff can make a disclosure without repercussions and treat these instances with the utmost care and attention. Complicated procedures should be avoided to ensure employees are not deterred from raising concerns. 

Having an internal nominated person (a Freedom to Speak Up guardian) who has had rigorous training and is solely responsible for the interface between whistleblowers and management is worthwhile, particularly if they are empowered with significant autonomy. 

This allows the nominated person to liaise with a whistleblower to gain further detail and evidence, decide on what action should be taken and make recommendations to an employer to find a resolution and implement preventative measures.

Where confidentiality terms allow, communication and transparency within a specified timeframe should be provided and maintained between both sides to encourage trust and demonstrate commitment to improvement. 

Alternatively, the Prescribed Persons Order 2014 sets out a list of more than 60 organisations and individuals that an employee may approach outside their workplace to report suspected or known wrongdoing. The National Guardian’s Office, NHS Improvement, and NHS Counter Fraud Authority are amongst some of those relevant for NHS staff to contact.

New and improved whistleblowing guidance 

Improvements are being made. NHS England and the National Guardian’s Office published new guidance on 23 June 2022 which provides a guide for leaders in the NHS and organisations delivering NHS services. There is also an accompanying reflection and planning tool designed to help NHS organisations identify strengths and areas requiring improvement. 

Earlier this year, the Whistleblowing Bill was presented to Parliament. This places greater emphasis on mandatory minimum standards for policies and procedures, and significant fines and penalties for individuals and organisations that discriminate or retaliate against whistleblowers. It also recommended a new judicial process for deciding disputes arising from whistleblowing.

The All-Party Parliamentary Group for Whistleblowing is pressing the government to rapidly adopt these recommendations, so HR teams should act to prepare adequately for strengthened requirements and avoid potential issues in future.

Paul Ryman is an employment partner and Katie Garcia an associate at Gunnercooke