Whistleblowing is in the spotlight again this month. Victoria McMeel and Jodie Sinclair look at where we are on new standards recently introduced and the latest case law on what a 'public' interest disclosure means.
It is increasingly recognised that whistleblowers can play a crucial role in exposing poor and/or dangerous practices in some organisations.
2016 brings significant developments in the whistleblowing landscape with new whistleblowing regimes introduced in both the NHS and financial services sector.
The new whistleblowing regime in the financial services sector represents a significant expansion of the scope of the previous whistleblowing rules and guidance, including the requirement to appoint a Senior Manager as whistleblowing champion. Relevant firms have until 7 September 2016 to comply with the new rules. However, the requirement to assign responsibility to a whistleblowers' champion came into effect on 7 March 2016. Between 7 March 2016 and 7 September 2016, the whistleblowers' champion will be responsible for overseeing the steps that their firms take to prepare for the new whistleblowing regime.
This month the final version of the overarching whistleblowing policy to be adopted by all NHS organisations was published by NHS Improvement. This comes in response to the Freedom to Speak Up Review by Sir Robert Francis QC, who concluded that whistleblowing required "urgent attention if staff are to play their full part in maintaining a safe and effective service for patients". A "standard integrated policy" was one of a number of recommendations of the Review.
NHS organisations are expected to adopt the policy by 31 March 2017. It is hoped that the policy will also be adopted by independent providers of NHS healthcare.
The aim of the new Freedom to Speak Up policy is to ensure that:
- NHS organisations encourage staff to speak up and set out the steps they will take to get to the bottom of any concerns;
- NHS organisations will each appoint their own whistleblowing guardian, an independent and impartial source of advice to staff at any stage of raising a concerns;
- any concerns not resolved quickly through line managers are investigated;
- investigations will be evidence-based and led by someone suitably independent in the organisation, producing a report which focuses on learning lessons and improving care;
- whistleblowers will be kept informed of the investigation's progress;
- high level findings must be provided to the organisation's Board; and
- the policy must be annually reviewed and improved.
In recent years there has also been considerable government intervention in whistleblowing. Before 25 June 2013, a qualifying disclosure made to anyone other than a legal advisor had to be made "in good faith" for it to be protected. Effectively this was replaced by a new requirement that a disclosure is not protected unless the person making the disclosure reasonably believes it to be made in the public interest.
In Chesterton Global Limited v Nurmohamed the Employment Appeal Tribunal (EAT) considered (in 2015) the "public interest" test for the first time. The EAT held that it is not necessary to show that a disclosure was of interest to the public as a whole, as it is inevitable that only a section of the public will be directly affected by any given disclosure. A relatively small group (in this case, 100 senior managers) may be sufficient to satisfy the public interest test. This undoubtedly introduces a low threshold for claimants to satisfy.
Chesterton is due to be heard by the Court of Appeal in October 2016 when it is hoped that further clarity on the extent of the public interest requirement is provided.
In the meantime, two further EAT decisions, drawing on the guidance of Chesterton, appear to have narrowed the requirement for the disclosure to be in the public interest even further.
In Underwood v Wincanton plc (EAT, 2015) a grievance was raised by four HGV drivers alleging unfair allocation of overtime. Mr Underwood was dismissed, following consideration of the grievance. A claim of automatically unfair dismissal was struck out by the tribunal at a preliminary hearing. The tribunal considered that the dispute was one relating to terms and conditions of employment and not of a public nature. On appeal, the EAT overturned the decision to strike out the claim. It held that the definition of 'public' applied by the tribunal was too narrow. The tribunal had failed to recognise that, following Chesterton, 'public' could be comprised of a subset of the public. Further, the tribunal had misdirected itself in holding that disputes relating to terms and conditions of employment were not capable of being in the public interest. This decision confirms the relatively low threshold for bringing a whistleblowing claim.
Last month, in Morgan v Royal Mencap Society, the EAT held that an employment tribunal was wrong to strike out an employee's whistleblowing complaints on the basis that she could not have reasonably believed that her complaints regarding her own cramped working conditions could be in the public interest. The EAT held that such a finding could only be made after a consideration of all the evidence and it was possible that an employee's complaint about their own working conditions could still meet the public interest test.
It remains to be seen whether the Court of Appeal's decision in Chesterton will impact on the number of whistleblowing claims which are brought. In the meantime employers will need to carefully consider whether any employee's complaints or grievances could be construed as a protected disclosure, bearing in mind the current legal position that the "public interest" test may be satisfied where only a relatively small section of the public is affected.