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My view on whistleblowing is that it is a worldwide problem, and in a commissioned Protect report, ( ‘Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK’) gives recommendations about how whistleblowers should be treated.

Whistleblowing plays a vital role in the achievement of good governance in sport as in every other governmental or non-governmental organisation. It is my view that whistleblowing is a worldwide problem. In a commissioned Protect report the then Chair wrote in her forward to ( ‘Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK’) :“Effective whistleblowing arrangements are a key part of good governance. A healthy and open culture is one where people are encouraged to speak out, confident that they can do so without adverse repercussions, confident that they will be listened to, and confident that appropriate action will be taken. This is to the benefit of organisations, individuals and society as a whole.”

Recent scandals in sports show once again that whistleblowers play a vital role in uncovering wrongdoing and that they are likely to suffer seriously detrimental consequences from those on whom the whistle has been blown.

The findings by a Court of Arbitration for Sport appellate panel (CAS) and in various reports prepared for the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC) have demonstrated wide spread state sponsored doping in Russia. Without the revelations of four Russian whistle blowers, two of whom were athletes and two involved with testing, it seems likely that the world would have known nothing of what, according to these findings, has been going on in Russia.

In the first WADA Independent Commission Report, dated November 9, 2015, the authors wrote: ‘Concurrent with the enforced silence/omerta imposed, when those [persons] involved in doping activities are exposed, they almost invariably attempt to attack, discredit, marginalize and intimidate any whistleblowers. It is well known that many sport organizations treat whistleblowers more harshly than they treat the dopers on whom they inform. Whistleblowers know this, but they are nevertheless willing to endure such treatment.

Those who are, or have been, dopers may revolt against the system of which they have been part. Those who may have been caught and sanctioned may also hope to achieve a reduction in whatever sanction may have been imposed.

Those words sound very familiar to those involved with the protection and support of whistleblowers, like Protect.

One of the first important whistleblowers in point of time was Lilya Shobukhova, a world class and very successful marathon runner. Her revelations to WADA and to the International Association of Athletic Federations (IAAF) in early 2014 directly led to an order by the IAAF Ethics Commission suspending the President of the Russian Athletic Federation, a Russian long distance coach and the son of the president of the IAAF ‘’for life from any further involvement in any way in the sport of track and field”. An IAAF official was also suspended for five years. The life suspension orders were upheld on appeal by CAS. The IAAF official did not appeal.

The good work of Protect has a key role in helping to transform the culture of whistleblowing in sport.

Sir Anthony Hooper, QC, has investigated corruption for the International Association of Athletic Federations (IAAF)

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Protect is calling on clearer legislation surrounding NDAs (non-disclosure agreements) it says is preventing whistleblowers from speaking out over gagging fears and threats of legal costs.

Protect (formerly Public Concern at Work) is calling for clearer wording for 43J of the whistleblowing law, the Public Interest Disclosure Act (PIDA).  It wants all NDAs, or settlements, to contain set wording to read; ‘for the avoidance of doubt, nothing should preclude (the employers name) from making a ‘protected disclosure’.  This should be a regulatory requirement in every sector, following the lead of the Financial Conduct Authority who has made this a requirement for all settlement agreements used by banks.

Protect is also calling on the legal profession to push back against any organisation that seeks to use NDA’s as a means of shielding wrongdoing.  What’s more lawyers should be required to give advice to whistleblowers about the fact no NDA will prevent them from raising a public interest whistleblowing concern.  Without this advice many workers are unaware of their rights in this area given the low awareness in the workforce around whistleblowing rights (68% of workers either were unaware of or wrongly believed there’s no legal protection for whistleblowers.

Following the Sir Philip Green NDA debacle, NDAs have once again hit the headlines over the use of NDAs in the NHS. An anonymous radiographer has told BBC Radio 4 they were fearful of speaking out and made to sign an NDA.

National Guardian Dr Henrietta Hughes, who oversees speaking up in the NHS, told the BBC Radio 4 Today programme, “I think it’s a great concern that staff who leave employment under a settlement agreement believe they don’t have the right to speak up. It’s enshrined in the PIDA law that workers who have concerns about safety do have the right to speak up but the wording of settlement agreements can be so opaque that people don’t believe that they have those rights.

She added, “They may be legally accurate, but the implication is that workers fear if they do speak up they may be liable to return an amount of money or even be liable for legal costs as well. I think its absolutely important we stop this.”

Protect Chief Executive, Francesca West said, “The Philip Green case and recent NHS case highlighted on Radio 4 – as well as the many, many calls we receive to our advice line from the health sector –  just go to show how we now need a complete overhaul of PIDA to ensure whistleblowers can safely speak out, to stop harm.”

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It was great to see so many of our supporters –  stakeholders, organisations we work with, parliamentarians, legal friends, former staff, trustees, and of course, whistleblowers –  at our 25th anniversary reception at the House of Commons, kindly hosted by Lord Shinkwin.

Lord Shinkwin shared with the room his own moving experience of whistleblowing whilst working in the charity sector, and the invaluable support he received from Protect, when we were known as Public Concern at Work.

Protect Chief Executive Francesca West thanked everyone for coming, and pointed out just how vital the work of Protect is for so many. She explained nobody wakes up saying ‘today I’m going to whistleblow’ and that whistleblowing is an unknown entity for most, until faced with a public interest concern directly.

Since 1993, Protect has supported 40,000 cases, and we hope to support many more over the next 25 years

Read our 25th anniversary highlights report

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Since whistleblowing legislation was introduced under the Public Interest Disclosure Act 1998, employees have been encouraged to come forward with disclosures of dangerous or criminal behaviour, without fear of reprisal or dismissal. Arguably the need to speak out against such activity is especially pertinent to the education sector, which deals with young and vulnerable people to whom there is an overriding duty of care. But despite the legislation and what appears to be an increase in disclosures, whistleblowing remains a sensitive, almost taboo, subject that is also accompanied by a great deal of confusion and concern about repercussions.

We have no comprehensive statistics to give us the full picture about the extent of whistleblowing in the education sector.  We are grateful to Protect for not only raising the importance of whistleblowing, but also for providing us with some numbers: they have seen an increase in the number of cases brought to their free confidential advice line for workers by people working in education, from 243 in 2012 to 382 last year.

An increase in whistleblowers could be telling us that there is growing confidence within our education sector to report wrong doing which will have always existed and needs rooting out.  However, the National Governance Association’s (NGA) experience of state schools at present is a sector better characterised by a climate of fear, rather than confidence. This may seem counter intuitive given there are more good schools (as categorised by Ofsted’s inspections) than ever before, but there is now a broad consensus that the accountability system is driving unnecessary workload and some negative behaviours in schools.  This not only can have detrimental effects on pupils, but is also contributing to the teacher shortage the many schools across the county are having retaining teachers.

The Secretary of State for Education, Damian Hinds MP, addressed NGA’s summer conference this year, saying:  “Vital as accountability is, the current system that we have can lead to stress and anxiety for some teachers, leaders and governors – the fear of inspection, of a single bad results year, the fear of the school being made to convert to an academy. I want to recast accountability not as something to be feared, or a blame game – but rather analysing what’s not working and then fixing it, collaboratively.”

This is an important time for rethinking school accountability and I was pleased to serve on the National Association of Headteacher’s Accountability Commission which reported this September in time to feed into Damian Hinds’ deliberations.  However, the scope of that Commission was limited to those parts of the accountability system which most worry our professional senior leaders – Ofsted and performance measures – and did not cover the other levers of public accountability, such as the role of governing boards and accountability to stakeholders.

More generally, the state schools sector has failed to think carefully enough about the role of the whistleblower, and their place in an intelligent accountability system. Protect has also reported that many teachers had been left unsure about whom to approach when they saw something wrong at work. This has been exacerbated by the widespread conversion of local authority maintained schools to academy status which has taken place since 2010 and the growth of multi-academy trusts.  There is considerable confusion over the way different types of schools are regulated, and changes have left some school staff, as well as parents unclear, about the official routes for complaints and who, exactly, is responsible for looking into accusations of malpractice. Different agencies are responsible for different aspects of the operations of academies, some are not clear about who they should approach if they have financial concerns, while others are unaware that local authorities remain responsible for safeguarding children.

‘The more autonomous legal structure of academy trust does provide more potential for wrong doing’

An increase in whistleblowing has therefore been linked by some commentators to both a lack of local authority oversight and more opportunities within the academy structure for wrongdoing. We do not have the information to make this assessment. However investigative journalists do report  higher numbers of staff bringing them stories from academies, accompanied often by a sense of frustration that the system of oversight is not working. There is also increased risk in that many academy trusts are growing and thereby responsible for very large numbers of pupils and thus greater amount of public funding that ever before.

The more autonomous legal structure of academy trust does provide more potential for wrong doing.  This should however be mitigated by strong trust governance, but until recently, this was not properly accepted and acknowledged within the system.  And even though it has now been accepted by powers that be – from the Government minister to the National Schools Commissioner to the chief inspector – that trust governance is a challenge which needs more attention, there is still not the knowledge embedded within the system as to what this means in practice or how to achieve it.

Whistleblowing by staff has in recent years been important in raising the financial mismanagement of public funding within schools; however sometimes the term has been wrongly assigned to others external to the school or academy trust.  For example, it has been reported that almost every investigation into academy trusts by the Education and Skills Funding Agency (ESFA) between the years 2013 and 2017 was prompted by a whistleblower as opposed to the direct oversight activities of ESFA.  However the financial irregularity or fraud was more frequently detected – or at least reported – by external auditors, not whistleblowers, whose professional yet independent status placed them in a good position to spot irregularities that may otherwise have flown under the radar of the ESFA.

The auditing of academy trust accounts is in fact part of the oversight and accountability system – that is why accounts are called accounts!  The requirement for academy trusts to publish audited annual accounts, which does not apply to local authority maintained schools, is providing a much needed higher level of scrutiny and transparency, and it is therefore more likely to expose financial wrongdoing than if they were not subject to a professional independent audit.

‘A need for Education and Skills Funding Agency (ESFA) to improve its own checks’

On the other hand, teaching unions have argued that such revelations offer a damning indictment of the current system of academy oversight, accusing it of lacking the capacity to prevent wrongdoings, as opposed to just dealing with them once they have been exposed by others. The system should not need to rely on whistleblowers, and I agree there is a need for the ESFA to improve its own checks.  However we are also aware that many local authorities are not able to carry out the financial oversight they once did, largely due to reduced funding available to employ the specialist staff needed.  Similarly, unless the ESFA receives more funding, it is difficult to see how it has the capacity to gain significantly more intelligence to inform its oversight role.  The last ESFA Chief Executive, Peter Lauener, affirmed his commitment to hearing out whistleblowers, thus appearing to award them a significant role in the accountability system.

NGA has been arguing that the EFSA should be merged with the National Schools Commissioner’s directorate of the Department for Education (DfE) in order to improve the oversight of academies.  It makes little sense for financial oversight to be separated from educational oversight with the consequence that governance oversight is not owned nor fully understood by either arm of the DfE.

Every maintained school should have a whistleblowing policy, with the governing body responsible for agreeing and establishing this. Similarly, academy trusts must have appropriate procedures in place for whistleblowing, making it clear all concerns will be responded to properly, consistently and fairly.  Communicating the policy to staff is vital, emphasising that whistleblowing legislation aims to protects workers from victimisation.

I have been told on numerous occasions the fear of reprisal and victimisation prevents individuals speaking out. It has been reported that a teacher has been suspended after using whistleblowing procedures to raise concerns about a failing school with Ofsted, and that other potential whistleblowers have not come forward for fear of triggering an Ofsted inspection of the school they work in.  Not enough has been done in the schools sector to acknowledge and value the role of whistleblowers. We would like to see whistleblowers thanked and commended, not condemned, for bravely speaking up on public interest issues.

Whistleblowing can identify risks and emerging trends, and it can ultimately improve sector-wide resilience

Currently missing from the debate on this subject within schools is the critical engagement on the part of school leaders, who can find themselves in an uncomfortable position.

The best leaders should treat crisis as a catalyst for constructive, creative change. Whistleblowing can identify risks and emerging trends, and it can ultimately improve sector-wide resilience in the context of disruptive changes. Secondly, policy on whistleblowing is a touchstone for organisational culture, providing school leaders with the opportunity to create a safe space for employees to speak out against bad practice and unethical behaviour. This requires bravery to see whistleblowers not as a threat but as part of an effective learning environment.

I am pleased to serve on the Association of School and College Leaders (ASCL)’s Ethical Leadership Commission which has just published an Ethical Framework for Educational Leadership. It builds on the Nolan principles for public service, exploring in more detail what these mean for school leaders, including those serving on governing boards. The same principles are also designed to give concerned colleagues confidence in calling out unethical behaviour. Courage is included in the framework as one of the virtues against which to test ethical dilemmas:  ‘leaders should work courageously in the best interests of children’ and ‘we should hold one another to account courageously’.

There is a challenge to ASCL’s Commission to help change the culture in the sector to one in which people are not afraid to call out unethical and inappropriate behaviour, in the same way leaders of schools and academy trusts need to do this at institutional level. NGA is pleased to be working with schools and their governing boards during 2019 on a pathfinder project to explore how the ‘Framework for Ethical Leadership in Education’ can be used well and as part of this work, we hope to have those conversations about whistleblowing.

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