‘WHISTLEBLOWING’ OR PUBLIC INTEREST DISCLOSURE

GUIDANCE FROM THE NATIONAL UNION OF TEACHERS

This NUT guidance covers:

-the case for the establishment of agreed procedures under which employees and others may make disclosures to the employer about issues of concern;

-the terms of the 1998 Public Interest Disclosure Act which affords protection to employees who make public disclosures in certain circumstances; and

-a checklist for division and association officers and NUT representatives on the features of good practice in whistleblowing procedures, which may also be used by divisions as an outline claim in negotiating a procedure on this area.

THE NEED FOR AGREED PROCEDURES

Considerable attention has been focused on ‘whistleblowing’ in the public sector in recent years. The issue has been the subject of reports by the Nolan Committee on Standards in Public Life and the Audit Commission as well as various other bodies, including employer and employee bodies, in particular sectors.

  • NUT members should always be encouraged to raise and discuss matters with their union representatives before seeking to invoke any whistleblowing procedure. Nevertheless, the NUT advises divisions that they should now seek to establish agreed procedures on this area through negotiation with teachers’ employers.
  • The NUT takes this view for the following reasons:
  • The Nolan Committee on Standards in Public Life recommended that:
  • ‘Local public spending bodies should institute codes of practice on whistleblowing, appropriate to their circumstances, which would enable concerns to be raised confidentially inside and, if necessary, outside the organisation.’
  • Both the Audit Commission and the Government have recommended that procedures are established for this purpose which are separate from the normal employee grievance procedure.
  • The Government has now introduced the Public Interest Disclosure Act (PIDA) 1998 which establishes protection for whistleblowers against detrimental action by their employers, but which also envisages that employers will have in place approved procedures for making complaints or allegations.

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  • The NUT is encountering an increasing number of whistleblowing procedures proposed by employers, in particular in the sixth form college sector, and is therefore keen to ensure that any such procedures reflect best practice in the area in order to afford maximum protection to employees.
  • The NUT is also concerned to ensure that any such procedures should be limited to their proper purpose of providing a means for employees to make disclosures without any detriment and be confident that these will be investigated. Such procedures must not undermine the use of existing procedures, in particular disciplinary procedures, where further action needs to be taken following investigation of any disclosure.

PROTECTION UNDER THE PUBLIC INTEREST DISCLOSURE ACT 1998

  • The Public Interest Disclosure Act (PIDA) 1998 amends the Employment Rights Act 1996 to introduce new rights for workers against action by employers. Workers have the right not to be subjected to dismissal or ‘detriment’ by their employers for making a protected disclosure.

Rights under the PIDA Act

  • The right not to be dismissed applies only to employees. Dismissal or selection for redundancy which is based on the making of a protected disclosure will be automatically unfair.
  • The right not to be subjected to ‘detriment’ applies to all workers. The definition of ‘workers’ used by PIDA will cover agency teachers and contractors’ staff as well as to teachers in regular service. ‘Detriment’ may include any action against a worker, for example demotion, failure to give training or promotion, or withholding a pay rise. Workers who are not employees will therefore be able to take action under this provision if their contracts are terminated as a result of making a protected disclosure.
  • PIDA does not, however, exclude the possibility of workers being sued by individuals for defamation in connection with any disclosures they make.
  • The definition of ‘workers’ used by PIDA will cover agency teachers and contractors’ staff as well as to teachers in regular service. There is, therefore, a clear case for any education employer’s procedure also to apply to such teachers.

Disclosures qualifying for protection

  • The Act limits its protection to disclosures which relate to the following matters:

-criminal offences;

-failures to comply with legal obligations;

-miscarriages of justice;

-health and safety dangers;

-environmental risks; and

-concealing information about any of the foregoing.

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A disclosure is not protected if it constitutes a criminal offence eg under the Official Secrets Act 1989 or is made by a person to whom the information was given in context of obtaining legal advice. These exclusions are unlikely to apply to teachers.

The NUT believes that employers’ whistleblowing procedures should be drawn more widely and cover disclosures relating to other matters of concern (see below).

Disclosure to particular persons

The Act gives protection to workers who make disclosures to specified persons in various circumstances. Protection applies where a disclosure is made:

-to the employer or to another responsible person, provided the worker acts in good faith;

-in the course of obtaining legal advice (the ‘good faith’ condition is not attached to protection where disclosure is made to a legal adviser); and

-in certain cases, to a Government Minister or to a person or body prescribed by the Secretary of State, provided the worker acts in good faith and reasonably believes the information falls within the potentially protected categories and is substantially true.

Disclosures more generally

The Act also gives protection to workers who make ‘external’ disclosures ie to persons other than the above. Workers will, however, only be protected under this general category if they have previously disclosed the matter to the employer or a prescribed body or have not done so because they reasonably believe they would have been victimised or evidence concealed or destroyed. They must also:

-make the disclosure in good faith;

-reasonably believe that the information, and any associated allegation, are substantially true;

-not act for personal gain; and

-act reasonably.

In deciding whether workers have acted reasonably, all the circumstances will be taken into account but including particularly:

-the identity of the person to whom the disclosure is made;

-the seriousness of the matter;

-whether the problem is continuing;

-whether the disclosure is in breach of the employer’s duties of confidentiality to any other person;

-any action the employer or prescribed person might reasonably be expected to take as a result of a previous disclosure; and

-whether disclosure was made in accordance with any internal procedures approved by the employer.

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Disclosure of exceptionally serious matters

Finally, the Act protects workers who make disclosures about exceptionally serious matters. The requirements are that the failure disclosed should in fact be of an exceptionally serious nature, and

-the disclosure is made in good faith;

-the worker reasonably believes that the information disclosed, and any associated allegation, are substantially true;

-the worker does not act for personal gain; and

-it was reasonable for the worker to make the disclosure, taking into account all the circumstances, particularly the identity of the person to whom the disclosure was made.

CHECKLIST FOR NEGOTIATORS ON WHISTLEBLOWING PROCEDURES

The attached checklist has been drawn up for use where any proposals for whistleblowing procedures are put forward by education employers. It may also be used as an ‘outline claim’ to be put forward by the Union to employers on this area.

Remember that the purpose of a whistleblowing procedure is, as noted earlier, to create a means for employees to raise concerns which they know will be given proper initial consideration. The whistleblowing procedure should not be used as a substitute for the proper procedures, in particular disciplinary procedures, for dealing with any issues of misconduct etc revealed by such disclosures.

Any whistleblowing procedure must, therefore, be limited to its proper purpose and clearly distinguished from other procedures. It should not contain provisions for action to be taken under that procedure against individuals who are the subject of allegations. Instead, it should provide clearly that allegations will be referred at the appropriate stage for consideration under the appropriate separate procedures.

The use of whistleblowing procedures should, obviously, also be clearly distinguished from the normal negotiating process. Matters of collective concern which NUT divisions wish to raise with LEAs should, in the vast majority of cases, continue to be pursued via the normal negotiating channels rather than via a whistleblowing procedure. In addition, and as stated earlier, NUT members should always be encouraged to raise and discuss matters with their union representatives rather than immediately taking them forward under a whistleblowing procedure.

Finally, where such a procedure is introduced, it is reasonable for the employer to state that it is expected that it should be used. In return, however, it is reasonable to expect the employer to make a commitment not to place any ‘confidentiality’ clause in contracts.

WHISTLEBLOWING OR PUBLIC DISCLOSURE PROCEDURES

NUT CHECKLIST / OUTLINE CLAIM

Commitments by the Employer

The procedure should commence with a clear statement of the employers commitment to achieving high standard of integrity and accountability; and that the purpose of the procedure is to assist in this by ensuring that complaints of fraud, malpractice etc may be raised without fear of harassment or detriment and by ensuring that all complaints will be given proper consideration.

The employer should give a further commitment that the procedure will not undermine other existing procedures such as grievance procedures, disciplinary procedures or child protection procedures. The procedure should provide that all allegations raised under the whistleblowing procedure will be referred at the appropriate stage for consideration under the appropriate separate procedures.

Managers and workers should be reminded that the existence of the procedure will not in any way lessen the employer’s commitment to a general climate of openness and cooperation in the school under which the opportunity should exist for discussion of difficulties and problems of all kinds with management.

Who and What should be Covered by the Procedure

The procedure should apply to all those working in schools. It should apply to non-employees working in schools, such as agency teachers and contractors’ staff, as well as employees such as teaching and support staff.

The procedure should indicate the type of allegations which may be dealt with using the procedure. These should not be limited to those specifically identified as protected under the Public Interest Disclosure Act (PIDA). The Nolan Committee has recommended that the scope of procedures should be drawn widely to encompass, for example, breach of procedure or good practice.

A suitable formulation might therefore be:

  • ‘Disclosures which are qualifying disclosures under PIDA ie:

-criminal offences;

-failures to comply with legal obligations;

-miscarriages of justice;

-health and safety dangers;

-environmental risks;

-concealing information about any of the foregoing; and

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  • disclosures which are related to :

-suspected financial or fraudulent malpractice such as embezzlement, bribery, corruption, dishonesty etc;

-breaches of agreed LEA or governing body procedures;

-breaches of established standards of good practice;

-improper conduct of other kinds.’

The procedure should specifically refer to PIDA and recognise and incorporate the protections which now exist as a result of that Act. In particular, it should not contain any provision which seeks to argue that any disclosures made outside the procedure would be regarded as a disciplinary offence, since this would be contrary to PIDA.

Protection for Individuals making or subject of Complaints

The procedure should identify the means by which complaints may be raised externally to the school and outside the normal channels of line management. There should not be any limit on the right to use the external channel.

There should, in particular, be an express recognition that the external channel should be used whenever a complaint has previously been raised with management or additionally whenever the employee believes in good faith that action is unlikely to be taken if the usual channels are used.

An undertaking should be given that any worker who raises a complaint under the procedure will be protected against harassment or victimisation as a result of doing so; and also that any such harassment or victimisation, or deterrence from making complaints, will be regarded as a disciplinary matter.

An undertaking should also be given that complainants will not be asked to demonstrate the validity of any allegation themselves beyond demonstrating, if necessary, that they have acted in good faith in making the complaint and that no action will be taken where complaints are found to be invalid provided that the allegation was made in good faith.

The purpose of such procedures is to provide a means for suspected fraud or malpractice to be raised rather than to pursue individual grievances. It is sensible that a clear statement is made to the effect that the procedure should not be used in place of the established grievance procedure (although using that procedure may also involve disclosure of previously unknown information).

Finally, a statement should be included that it is completely unacceptable for the procedure to be used to further private disputes and make unfounded allegations for malicious or vexatious reasons; and that where such bad faith is established, disciplinary proceedings might appropriately be taken against that individual.

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The Procedure for making Complaints

The procedure should clearly identify the appointed person or body who may be contacted by the person who wishes to raise a concern. This would, for LEA-maintained schools, most appropriately be an LEA officer. Alternatively, for voluntary aided church schools, it might be an officer of the Diocesan Board.

The procedure should provide allegations need not be made in writing, but that an acknowledgement will be made in writing where the complaint is made in writing.

Anyone making an allegation should also be entitled to a meeting with the appointed person, away from the normal workplace, to communicate the allegations.

The appointed person should then deal with the allegation by taking the matter up with the management or governors of the school or by taking other appropriate action according to the circumstances. The procedure should indicate clearly detail how the appointed person will deal with the allegations made. It should provide that some types of allegation will be referred immediately for consideration under existing separate procedures (eg child protection procedures) as soon as the allegation is received. Other allegations should be subject to an initial investigation under the whistleblowing procedure but, if they are found to be potentially valid, the procedure should provide that they will then be referred for consideration either under the disciplinary procedure or to the police or District Auditor.

The appointed person should, while maintaining the confidentiality of the complainant (see below), ensure that any individual who is the subject of the allegation is given details of the allegations in order to respond.

The appointed person should be required to produce a written report relating to the allegations, detailing the outcome of the investigation and further action, if any, to be taken, which should be copied to the complainant.

The complainant should be permitted to place the allegation before a committee of elected members if dissatisfied with the report.

The complainant should be entitled to be represented by their trade union representative at any meetings convened for the purpose of the consideration of complaints made under the procedure.

Confidentiality

The procedure should contain a commitment to preserving the confidentiality of those who raise complaints. Workers wishing to raise complaints should be guaranteed confidentiality at the point of raising the complaint with the person appointed to receive complaints. Confidentiality should also be maintained during investigation and hearings other than in circumstances where there is an arising need for disclosure of identity eg due to cross examination of the complainer as witness.

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The procedure should permit workers to raise complaints via their trade union, rather than personally, if they so wish in order to further maintain confidentiality on identity. The procedure should therefore provide that, in such circumstances, disclosures by workers to their trade union will not be treated as grounds for disciplinary proceedings. It should also provide that trade union representatives will themselves have the protection given to complainants under the procedure, provided that they act in accordance with the procedure with regard to the information so disclosed.

The procedure should recognise that it may be appropriate for anonymous complaints to be considered, particularly in circumstances where the issue raised is extremely serious. The procedure should not, therefore, rule out action on the basis of anonymous complaints.

Communication and Review

The procedure should provide that its terms will be communicated to workers covered by the procedure, including supply teachers and agency teachers working in schools on a temporary basis.

It should also provide that regular reviews of the procedure, and of the handling of complaints under the procedure, will take place with the involvement of required trade unions.

Full records should be kept of the use of the procedure and these should be disclosed during the review process.

  • National Union of Teachers
  • January 1999