Sir Robert Francis QC's report into the strength of whistle-blowing procedures in the NHS was published today. The report reemphasises the need to protect whistle-blowers, and found that a lack of protection has resulted in employees being scared to speak out, resulting in irregular working practices continuing.
Nimisha Agarwal from the disputes & investigations practice at international law firm Taylor Wessing comments:
"The NHS is not the only industry to have reviewed whistle-blowing procedures (the FCA having recently done the same) and the lessons learned from this report are applicable across many industries. This report suggests that whistle-blowers are left exposed due to structural weaknesses in organisations' procedures, as well as because of gaps in relevant legislation.
There has in the past been insufficient attention given to preventing a detrimental impact on the whistle-blower, with too much reliance being placed on the whistle-blower themselves seeking a remedy through an employment tribunal. And even when successful, they too often feel that, after a lengthy and costly process, they failed to obtain an award which fairly compensates them.
To protect whistle-blowers from detrimental impact, some very basic legislative changes must be made – such as clarifying the definition of whistle-blowing and to expand discrimination laws to encompass whistle-blowers as a 'protected characteristic.' We may now see regulators taking more responsibility for defending whistle-blowers who face retaliation – will the FCA follow the approach of the SEC who brought an anti-retaliation case against a company who treated a whistle-blower unfairly?
Finally, such changes should be supported by structural enhancements such as the implementation of informal reporting lines to resolve issues before they escalate to a stage where whistle-blowing is required, and better coordination of professional bodies and regulators."