Appointed as a Whistleblowing Champion?

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I’ve been appointed as a Whistleblowing Champion – Help!

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In light of the strength of public and political concern regarding misconduct scandals in banking and financial services, the regulators were determined to ensure that there was a stronger whistleblowing culture within the sector. The whistleblowing champion is to ensure accountability at the most senior level for the way whistleblowing is handled and how whistleblowers are treated.

What will I have to do?

Quite a lot. It is your role to ensure the implementation, integrity, independence and effectiveness of a firm’s policies and procedures on whistleblowing by 7 September 2016. The buck stops with you as part of your statement of responsibilities, and any failures in implementing these processes will lie at your door. It is a heavy burden of responsibility. It’s made heavier still because individuals working for financial firms may be reluctant to speak out about wrongdoing for fear of suffering personally. Mechanisms within firms to encourage people to voice concerns – by, for example, offering confidentiality to those speaking out – can provide comfort to whistleblowers.

It will be important for you to create a culture of confidence for employees to report those concerns, enable the escalation of concerns to an appropriate regulator or law enforcement agency, track the outcome of whistleblowing reports, provide feedback to whistleblowers and take reasonable steps to protect whistleblowers from victimisation. Whilst there is no regulatory duty on staff to blow the whistle or a regulatory duty to investigate whistleblowing disclosures, ignoring whistleblowing reports may well be perilous.

Your duties entail:

overseeing internal processes to ensure all colleagues’ disclosures are handled properly. This process should also deal with disclosures by secondees, interns, volunteers, contractors, customers, agency staff, suppliers and even employees of competitors;
informing UK-based workers about the FCA’s and PRA’s whistleblowing services, and ensuring they know they can approach the regulator directly without first raising a concern within the firm;
oversight of the provision of appropriate training for UK-based employees and managers;
reporting to the regulator if the firm loses an Employment Tribunal claim for whistleblowing (where the finding relates to a claim that the whistleblower was victimised); and
presenting an annual report to the board and making it available to the regulator.

How do I know if a concern amounts to whistleblowing?

Whistleblowing disclosures can contain a breach of any regulatory rule, failure to comply with a firm’s policies or procedures and any behaviour that harms or is likely to harm the firm’s reputation or financial wellbeing. So, carte blanche really. Not all reported concerns will fall within whistleblowing law but you should take them seriously.

You may be relieved to know that it will not be for you to judge whether a particular whistleblowing disclosure is genuine or not. The process and training of managers should be robust enough to sift out and prioritise the concerns that are raised and how they should be dealt with. It will be your responsibility to stress test the processes. This will mean working closely with business units to implement the new regime, and receiving regular updates and reports on the progress of implementation in the coming months.

Where can I look to for support?

Although the FCA and PRA have set out their own requirements, the Department for Business Innovation and Skills has published guidance for employers and a code of practice on whistleblowing. The charity, Public Concern At Work also provides examples of good practice.

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Complaint about cramped working conditions could amount to whistleblowing

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Complaint about cramped working conditions could amount to whistleblowing

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An employee’s complaint about her cramped working conditions may have been sufficiently in the public interest to amount to a whistleblowing disclosure.

Ms Morgan worked for the Royal Mencap Society. During June 2014, she raised on a number of occasions a complaint that her cramped working conditions were causing her pain and discomfort. After her employment ended, Ms Morgan brought claims for constructive unfair dismissal and alleged she was subjected to detriments because she had made whistleblowing disclosures. She argued that her complaints were in the public interest because: (i) Mencap was a charity, and people would be interested to know how it treats its employees; and (ii) her complaint raised a potential threat to other people’s health and safety.

The Employment Appeal Tribunal held that complaints of the nature raised by Ms Morgan could potentially be in the public interest. The case has gone back to the Employment Tribunal for her claims to be considered in full.

Morgan v Royal Mencap Society ukeat/0272/15

Complaint about terms and conditions was in public interest

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Complaint about terms and conditions was in public interest

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Employees who make a complaint about terms and conditions regulating their and their colleagues’ employment may now be taken to have blown the whistle. The definition of what is in the ‘public interest’ – and therefore protected by whistleblowing legislation – has been widening and the latest case on the point has taken it further still.

Mr Underwood was employed by Wincanton Plc as an HGV driver. In November 2013, he and three colleagues submitted a grievance relating to the terms and conditions of their employment, with a particular focus on the process by which overtime was being allocated amongst drivers. Wincanton dismissed Mr Underwood in June 2014.

Mr Underwood claimed that his dismissal had been automatically unfair in being caused by his protected disclosures.

The Employment Appeal Tribunal held that Mr Underwood’s complaints were capable of being ‘in the public interest’ for the purposes of whistleblowing legislation. Previous authority has made clear that disputes relating to terms and conditions can amount to protected disclosures. It did not matter that only Mr Underwood and the colleagues sharing his terms of employment were concerned by the complaint – they still counted as a subset of the general public.

This case represents the latest in a trend towards recognising a public interest in complaints which only have relevance to limited numbers of people. Employers should be wary of taking punitive action against a staff member who makes a complaint about his contract if those complaints are applicable to more people than solely that employee.

Underwood v Wincanton plc UKEAT/0163/15

New PRA and FCA whistleblowing rules

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New PRA and FCA whistleblowing rules

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On 6 October 2015, the PRA and the FCA published parallel policy statements containing rules on whistleblowing in financial institutions.

The rules, which are due to come into force in September 2016, will apply to all deposit takers with over £250 million in assets, as well as PRA designated investment firms and insurers, although it is specified that other firms are welcome to look to these rules and adopt them as guidance.

At the core of the statements are a number of requirements seeking to establish a culture which encourages whistleblowing as a positive act. Firms will have to appoint a “whistleblowers’ champion”, a senior employee who will be responsible for overseeing the implementation of the internal policies and procedures in place for whistleblowing, and reporting annually to the board on the subject. A designated champion must be nominated by 7 March 2016. The rules also require that a whistleblowing channel be established to facilitate any type of disclosure, from any person.

Other important aspects of the new rules include the requirement that settlement agreements do not expressly prevent staff from reporting wrongdoing, even after having exited the company.

The rules are intended to build on existing good practice in the financial and insurance sectors, though it remains to be seen whether this has an impact on the number of disclosures made by employees.

PS15/24 and PS24/15: Whistleblowing in deposit-takers, PRA-designated investment firms and insurers

Are whistleblowers being protected?

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Are whistleblowers being protected?

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The charity Public Concern at Work has found that whistleblowers are not being adequately protected under the current legal regime and made a number of recommendations as to how this may be remedied.

Public Concern at Work undertook a review of all cases involving a whistleblowing claim issued in the Employment Tribunals between 2010 and 2013. PCAW found that 68% of such cases are withdrawn or settled before trial and, of those cases which proceeded, 62% were lost or were struck out. Over £7.3 million in damages was awarded to successful claimants. This does not seem like a great deal, particularly considering that a single claimant in one of the cases received damages of £3.4 million.

It was found that claimants in whistleblowing claims are significantly more likely to succeed at trial or to settle the claim when they are legally represented. However, in the cases surveyed, 56% of claimants did not have legal representation. As such, PCAW has recommended greater access to legal aid in all whistleblowing claims to increase the proportion of people taking legal advice. Given current cutbacks in Legal Aid, the chances of that happening are extremely remote.

Of all cases in which a judgment was made, PCAW found that discrimination or harassment was the most common form of wrongdoing complained of by whistleblowers, comprising twice as many cases as did complaints about financial misconduct. Across all types of complaint, 9 out of 10 claimants raised their concerns internally in the first instance. The charity noted that it was not possible to discover the type of complaints made in cases which settle before trial, therefore they recommended that an accessible register of all complaints be created.

PCAW expressed concern at its finding that the number of whistleblowing claims issued had fallen by almost 20% since the introduction of tribunal fees in July 2013. (That is, in fact, a relatively small decline compared to the drop in, for example, discrimination cases.) It also expressed concerns about costs awards made in whistleblowing cases, finding that claimants have been ordered to pay £753,135 in costs whilst costs ordered against employers totalled a mere £183,992. As a result of these findings, PCAW recommends a change in the way that fees and costs are approached where the claimant is a whistleblower.

Perhaps the most surprising finding is that the majority of whistleblowers in the cases surveyed worked in the private sector. PCAW suggest that this may be because complaints in the public sector, particularly in the health and care sectors, are more likely to be low-value and thus not be issued.

‘Is the law protecting whistleblowers? A review of PIDA claims’, Public Concern at Work, May 2015

EAT clarifies the “public interest test” for whistleblowing claims

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EAT clarifies the “public interest test” for whistleblowing claims

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A disclosure does not need to be in the interest of the public at large in order to satisfy the “public interest test” as set out in whistleblowing legislation, and can concern only a small group of people.

The Claimant, Mr Nurmohamed, was employed by Chestertons as a senior manager. He made disclosures regarding manipulation of the company’s accounts, which were modified in order to overstate costs and liabilities resulting in lower commission payments for around 100 employees (including himself). Mr Nurmohamed was subsequently dismissed and brought a claim for unfair dismissal against Chestertons.

It was submitted by Chestertons that, as the disclosure only concerned a class of its employees, it did not satisfy the ‘public interest’ requirement. The EAT considered the meaning of ‘in the public interest’ and held that a disclosure is not required to be of interest to the public at large. As such, although Mr Nurmohamed’s disclosure was only of interest to a small group of persons, i.e. the 100 senior managers affected by lowered commission payments, it still qualified as a protected disclosure for the purposes of whistleblowing legislation.

The EAT took a broad view of the ‘public interest’ test, thus setting out a lower threshold for who a whistleblower is than many had anticipated. It should be noted that the EAT reached this conclusion despite the fact that Mr Nurmohamed’s principal concern was for his own income, rather than that of other affected employees.

Chesterton Global Ltd and another v Nurmohamed UKEAT/0335/14

Disobeying instruction not to contact external independent authority is grounds for dismissal

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Disobeying instruction not to contact external independent authority is grounds for dismissal

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“Too many foreigners in the English game” has been cited by the Brazilian football legend Carlos Alberto as a reason for the English national side’s poor showings in international tournaments. Could Brexit give more English-born players a chance to play in the Premier League?

An employee who disobeyed an instruction not to contact the Information Commissioner’s Office was fairly dismissed.

Mr Barton was a tenancy relations officer employed by the Royal Borough of Greenwich. Having heard from a colleague that his manager may have sent confidential personal data to her home computer, Mr Barton contacted the ICO requesting advice. Mr Barton was then asked by Mr O’Malley, the department head, whether he had sought his manager’s authority before doing so. Mr Barton responded by saying that he did not require such authorisation. Mr O’Malley then made clear that Mr Barton was not to have any further communications with the ICO whilst he investigated the allegations.

Despite this instruction, Mr Barton subsequently contacted the ICO to check whether his employer had the authority to prevent him from contacting the ICO. The ICO confirmed that they did not. The outcome of the subsequent investigation showed that only 11 emails had in fact been sent by Mr Barton’s manager to her home computer, none of which contained confidential information. There was a subsequent tenant complaint regarding Mr Barton, following which he was dismissed for gross misconduct. Mr Barton brought a claim for unfair dismissal as a result of whistleblowing.

It was relevant for the tribunal that the instruction to Mr Barton had been simply not to contact the ICO without his manager’s consent. Furthermore, the instruction was for a limited duration, and there was nothing to suggest that the manager would not have given Mr Barton consent to contact the ICO afterwards. Therefore the tribunal could not find that the instruction was unlawful, and concluded that Mr Barton’s dismissal as a result of his disobedience was a reasonable response.

In light of the facts of the case, it would be dangerous to construe this decision as a carte blanche for employers to prevent employees from contacting external authorities. The scope of the instruction, in particular the limited duration of the prohibition, was a decisive factor in the tribunal’s decision. Nevertheless, this decision will help employers, as it is in line with most employers’ aims which would be to address any concerns internally before external bodies are contacted.

Barton v Royal Borough of Greenwich UKEAT/0041/14

Arpita Dutt’s success for Whistleblowing Surgeon who wins his Unfair Dismissal and Disability Discrimination Claim

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Arpita Dutt’s success for Whistleblowing Surgeon who wins his Unfair Dismissal and Disability Discrimination Claim

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An employment tribunal has ruled that a respected surgeon was unfairly dismissed after whistleblowing on poor standards of care at a hospital. The case has been reported in The Sunday Times, The Independent, Health Service Journal and Hospital Doctor. Arpita Dutt and her client, Mr Weerasinghe were also featured on BBC London News on 14 July 2014.

Arjuna Weerasinghe is now in the process of preparing for a further hearing to determine compensation after winning his claim against Basildon and Thurrock University Hospitals NHS Foundation Trust (BTUHT).

BTUHT was one of 25 Trusts highlighted by the Care Quality Commission (CQC) as requiring urgent investigation over high mortality rates in 2010. It has recently come out of ‘special measures’.

Mr Weerasinghe, a cardiothoracic surgeon raised concerns in 2010 over poor patient care and filthy operating theatre conditions at Basildon Hospital in Essex.

The matter came to a head when vital theatre equipment was unavailable when he performed an operation on a patient who subsequently died three days later. Mr Weerasinghe reported the incident and subsequently wrote a detailed report for the Coroner however, in breach of National Patient Safety Association Guidelines, the death was never reported by the Trust as a serious untoward incident (SUI).

It then took BTUHT 14 months to respond to a Coroner’s request for information about the case and its initial investigation internal report was altered to remove a sentence exonerating Mr Weerasinghe from any blame. The tribunal found that the altered report sent to the Coroner played down the patient incident.

The original author had also been asked by a senior manager to provide “a ‘quick and dirty’ response” which the tribunal said was a request to “get rid of the matter quickly and quietly” and was motivated by the Trust being “concerned about … potential exposure to litigation”. The tribunal determined that BTUHT continued to be primarily concerned about criticism of the hospital if it were found that faulty or inadequate equipment had possibly contributed to the patient’s death.

Mr Weerasinghe went on sick leave due to a chronic chest condition brought on by pneumonia, which was believed to have been contracted in a dirty operating theatre at the hospital. During his sick leave, without any financial gain or loss to BTUHT, he attended CPD courses and a job interview in Cork. None of these matters were found to be against BTUHT policy. Mr Weerasinghe was dismissed in November 2012 after a protracted disciplinary process.

BTUHT were unable to establish that the decision to subject Mr Weerasinghe to a disciplinary investigation was on grounds of genuine concern about his conduct. The tribunal found that his whistleblowing disclosures about the patient incident were a material influence in the decisions to subject him to a disciplinary investigation from November 2011 onwards and also requiring him to attend a disciplinary hearing in November 2012. The tribunal found that he had been subjected to the entire disciplinary process because he had raised whistleblowing concerns.

The tribunal heard the dismissing manager, who was also a fellow Trust Consultant, had refused to read a three page report from Mr Weerasinghe’s GP prior to the disciplinary hearing, arguing it would have taken 30 minutes to do so.

This was rejected by the tribunal as “so illogical as to lack any credibility” and it was added that the dismissing manager’s evidence had “changed regularly and in many cases was simply not credible”. The dismissal was found to be unjustifiable discrimination arising from Mr Weerasinghe’s ill health.

Mr Weerasinghe said: “I believe my public interest disclosures regarding the unavailability of appropriate equipment and material in this case were a major influence in the decision to investigate and then dismiss me.

It has been a very difficult time for me and my family. The extreme efforts made by senior individuals at Basildon Hospital over the past four years have worked towards tarnishing my credibility, reputation and professional career and have had crippling effects.”

Arpita Dutt, Partner added: “The judgment exposes a catalogue of failures by senior individuals in this Trust. In my opinion, it also exposes a lack of credibility, arrogance and manipulation of processes that have led to unanswered questions around the death of a patient and the loss of a 20 year career for a dedicated surgeon who was seeking to protect patients and carry out his job to the best of his abilities. It is the worst dismissal I have seen in 17 years”.

Mr Weerasinghe was represented by barrister, Lydia Seymour of Outer Temple Chambers.

To read more about the case see:

The Independent

The Sunday Times

Hospital Doctor

To read more about progress towards further protection for whistleblowers click here and here.

Member of an LLP is a “worker” and qualifies for protection under whistleblowing legislation

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Member of an LLP is a “worker” and qualifies for protection under whistleblowing legislation

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The Supreme Court has held that a former equity partner of a law firm structured as a limited liability partnership was a worker and therefore eligible for protection under whistleblowing legislation. The Supreme Court found that the partner fell within the definition of worker in the Employment Rights Act 1996 as she could not market her services to anyone other than the LLP and was a key part of the business.

Ms Bates van Winkelhof was an equity partner of Clyde & Co LLP. Junior equity partners at Clyde & Co received a profit related element of pay and a guaranteed element of pay; more senior members received a profit only element of pay. Ms Bates van Winkelhof was a junior equity partner seconded to a Tanzanian law firm, Ako Law, in 2010. In November 2010, she reported to Clyde & Co that the managing director of Ako Law had admitted that he engaged in paying bribes to obtain work and influence the outcome of cases. Ms Bates van Winkelhof reported these allegations to Clyde & Co. The following day she was dismissed by Ako Law and suspended by Clyde & Co. Shortly after, she was expelled from Clyde & Co’s partnership.

Ms Bates van Winkelhof made a claim to the Tribunal that she had been victimised as a result of making allegations of bribery. The merit of Ms Bates van Winkelhof’s case is yet to be considered by a Tribunal because Clyde & Co argued that, as an LLP member, Ms Bates van Winkelhof was not a worker within the definition of the Employment Rights Act 1996 and that therefore she could not qualify for protection under it, rendering her unable to claim whistleblowing protection.

A worker is defined in The Employment Rights Act 1996 as: (i) someone who works under a contract of employment; or (ii) any other contract whereby they undertake to perform work or services personally to another party whose status is not that of a client or customer or business undertaking carried on by the individual.

The Supreme Court held that Ms Bates van Winkelhof was a worker and therefore was entitled to whistleblowing protection. Although Ms van Winkelhof was a junior partner, the Court expressly ruled out a requirement that a person must in some sense be subordinated to be a worker. As such, it seems likely that all members of LLP’s are likely to be treated as workers from now on.

As a result of the Supreme Court’s decision, LLP members will also become entitled to a range of benefits available to workers such as, the right to paid annual leave and limits on working time, national minimum wage and auto-enrolment into pensions.

Clyde & Co LLP & Anor v Van Winkelhof [2014] UKSC 32

Separate emails but read as one can amount to a qualifying disclosure

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Separate emails but read as one can amount to a qualifying disclosure

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For an employee to bring a whistleblowing claim, they first need to show that they have made a qualifying disclosure. In simple terms this means that an employee has made an allegation to their employer which shows that malpractice has taken or will take place or an employee’s health and safety is at risk.

In Norbrook Laboratories (GB) Ltd v Shaw, the EAT held that three separate emails, which raised concerns about driving in snowy conditions, when read as a whole did amount to a qualifying disclosure.

Mr Shaw was employed as a manager for Norbrook Laboratories. His duties included managing a team of staff who drove around the UK to win sales. During the winter of 2010, heavy snowfall affected his team’s ability to travel to appointments. As manager, Mr Shaw sent two emails to the company’s health and safety manager. The first one asked whether there was a policy for driving in snowy conditions and whether a risk assessment had been carried out. The second asked for guidance, as the driving conditions were dangerous and pressure was being placed on the team to continue performing duties. The third email was sent to HR, but referenced the two previous emails, asking whether his team would still be paid if they didn’t drive and he repeated his previous requests for guidance.

The Tribunal held that on their own, the emails did not amount to a qualifying disclosure but when read as a whole, it was enough to show that an individual’s health and safety was endangered. Although it has already been established that separate correspondence can amount to a protective disclosure, this case confirms that each correspondence does not have to be to the same person, so long as reference is made to previous communications.

Former employees can claim protection from retaliation for whistleblowing

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Former employees can claim protection from retaliation for whistleblowing

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In Onyango v Berkeley, Mr Onyango, a solicitor, claimed that as a result of accusing his former employer of acting illegally, he was reported to the Solicitors Regulation Authority for forgery and subject to an investigation by the SRA.

Mr Onyango’s firm claimed that only allegations of unlawful conduct made whilst an employee is working can give someone the protection of the whistle blowing legislation. The Employment Appeal Tribunal disagreed and ruled that disclosures made after termination of employment may be relied upon if it results in detrimental consequences.

As a result of this case, employers need to know that former employees making allegations of illegality and other forms of malpractice are still protected by the law from retaliation. The most probable situations are where a worker alleges that their former employer has refused to provide a reference to a prospective new employer because they blew the whistle. The financial consequences of the employee missing out on a new job could be very significant and therefore these claims could be substantial.