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 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-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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We are looking for an enthusiastic, driven and public-spirited law graduate to join our expert Whistleblowing Advice Line team.

Salary: £21,631 per annum

Benefits: Option to apply for a training contract, 30 days annual leave, 8% pension entitlement, cycle to work scheme and childcare vouchers, sabbatical entitlement after 5 years’ service.

Are you an ambitious law graduate with aspirations to utilise your law degree for the benefit of the public interest? Moreover, do you wish to work in a meritocratic culture with the potential to further your legal career by completing your training contract? If yes, joining Protect’s expert legal advice centre may be the solution for you.

Public Concern at Work

Protect (formerly Public Concern at Work) is the leading whistleblowing charity with 25 years’ subject matter expertise.  We are unique in that we are the only free, confidential legal advice line for whistleblowers and were instrumental in creating the Public Interest Disclosure Act. In addition to this work, we support organisations from FTSE250 to SMEs across multiple sectors to enhance their whistleblowing arrangements.

Due to the staggering demand that saw our advice line receive over 2,500 cases last year, we are now looking for an enthusiastic, driven and public-spirited law graduate to join our expert Whistleblowing Advice Line team.

The Legal Adviser role will entail:

  • Utilising your legal expertise and divergent thinking skills to deliver bespoke early stage advice and identify unique solutions to support whistleblowers in raising their concern
  • Being attentive to current legal affairs, whistleblowing cases and commercial market trends to ensure the advice to whistleblower clients is both considered and accurately informed
  • Providing input to maintain the continual development and quality improvement of advice line services
  • Working collaboratively with our Head of Service and senior lawyers, and assisting where necessary in the preparation of legal interventions

The successful candidate must have a law degree, a strong academic background, good communication skills and previous experience providing advice. Experience engaging with policy makers, or the business community, will also count favourably towards an application.

For more information about our work, please visit our website or call 020 3117 2525 if you have any queries.

Application Closing Date:  3pm Thursday 29th November 2018

Interviews: w/c 3rd December 2018

Reporting to: Head of Advice and Advocacy

Please apply with an up to date CV and covering letter demonstrating your suitability for the role to Frances Steele, via email frances@protect-advice.org.uk

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A tailored breakfast briefing round table for Company Secretaries of listed companies on effective whistleblowing arrangements – to comply with the new Principle E in the Corporate Code of Governance – is taking place on 8.30am on 12 December 2018.

The round table, will be hosted at our Protect offices near London Bridge. Protect aims to ensure workers can speak up to stop harm. We do this in three ways:

  • Provide confidential advice and support to workers
  • Support, train and review organisations on best practice speak up or whistleblowing arrangements
  • Campaign for improvement on public policy and legislation

Protect, (formerly known as Public Concern at Work) has advised over 40,000 UK workers in its 25-year history, trained thousands of managers, senior leaders and board members and supports hundreds of organisations with their internal arrangements.

Protect Development Director, Jon Cunningham said, “The round table aims to explore the current challenges that organisations face when designing arrangements and compliance with Principle E in the Corporate Code of Governance. The round table will also be an opportunity for us to share best practice with you from intelligence gathered from our 360 Benchmarking tool.”

Read our Protect welcomes new financial reporting council (FRC) governance code news story

If you would like to attend, or discuss your arrangements with us prior to the briefing, please either contact Kushi Gujral, our Senior Business Support Officer,  kushi@protect-advice.org.uk  or call 020 3117 2525 .

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The recently formed All-Party Parliamentary Group on Whistleblowing (APPG on Whistleblowing), a group of peers and MPs who through research and debate are campaigning for better protection for whistleblowers.

The APPG on Whistleblowing, initiated by WBUK, have launched a survey to collect the experiences of whistleblowers from as many different sectors and industries as possible.  These views will be collated by the APPG and will form the basis for both future research and proposed reforms of whistleblowing protection.

Georgina Halford-Hall CEO of WhistleblowersUK said, “I have faith in the APPG which is formed of people who like me have experienced the frustration faced by whistleblowers and know that current provision is not working. However, it takes more than a group of politicians to make change happen and it’s in everyone’s interest to contribute to this discussion, the survey takes only a few minutes, is easy to access and is an important and integral part of influencing change. Do it today and change things for tomorrow.”

Andrew Pepper-Parsons Head of Policy for Protect said, “We welcome the survey as a great way for whistleblowers to pass on their experience of raising concerns directly to legislators and then to the Government for real change to occur.  We look forward to seeing the results of the survey and being part of the debate on the future of whistleblowing protection.”

For anyone interested in taking part in the survey you can find it here.

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Karen Campbell-White, Head of Campaigns & Compliance at the CMA on their latest Stop Cartels campaign and why educating businesses on business cartels will hopefully put a stop to  unfair and illegal behaviour.    

Our latest work with Protect builds on our last campaign, which saw a 30% increase in tip offs to our cartels hotline.  We hope to repeat this success.  

So, what are we doing differently this time round?

We spoke to businesses across the UK to get a better understanding of how much they understood about risky business practices that could put them in danger of breaking competition law.  We also researched attitudes to speaking up and reporting bad business behaviours.

What we found

Our research shows UK businesses are still unclear about competition law:

  • Most (77%) don’t feel they understand competition law well
  • Very few (6%) run any competition law training or have senior level discussions about it (18%).
  • 41% don’t know attending a meeting where rivals agree prices is illegal

And although it is encouraging to see that most firms (88%) would act if they had information that someone in their organisation was breaking the law, they wouldn’t necessarily speak out – 39% would talk to the person directly to warn them.

How have we made reporting cartels easier?

To encourage informants to come forward to us and stay with us on the reporting journey, we’ve taken inspiration from behavioural theory, making it easy for people to ‘do the right thing’ and tell us when they see illegal practices.

Look out for our new:

  • refreshed campaign page that explains what cartels look like in practice
  • case studies that lift the lid on real life cases where businesses have broken the law
  • online tools such as an online quiz and a ‘cartel checker’ to help users understand if what they have seen is illegal
  • online reporting form that makes the reporting to us quicker and easier
  • reporting film that explains what to expect after you report a case to us

Why is it important to report?

Although business crimes may look victimless they are not. Business cartels cheat customers out of a fair deal by forcing prices up, reducing quality, choice and innovation.

The CMA takes cartel behaviour seriously and the repercussions if you are caught breaking the law are serious.

We’re telling those that may have been involved in a cartel that it’s better to Be Safe, Not Sorry and report it to us first, as they may benefit from immunity from fines and prosecution if they report before others do.

If you think you’ve witnessed others breaking the law, then Do What’s Right and report it to us to the CMA using any of our reporting channels (phone, email or online reporting form)

To find out more go to: www.gov.uk/stopcartels

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The Competition and Markets Authority’s (CMA) latest cartel awareness campaign aims to educate businesses about which practices are illegal and is urging people to come forward if they suspect a business has taken part in cartel behaviour, such as fixing prices or rigging contracts.

The campaign is targeting industries including construction, manufacturing, recruitment, estate agents and property management and maintenance. These are sectors identified as particularly susceptible to cartels. Previous campaigns have driven a 30% rise in the number of tip-offs to the CMA’s cartels hotline.

Research released by the CMA shows that out of amongst 1,000 companies surveyed:

  • only 57% knew it was illegal to fix prices
  • nearly half either didn’t know or thought it was legal to discuss prices with competing bidders when quoting for new work (23% said ‘don’t know’, and 25% actually thought it was legal)
  • significantly more than half (59%) didn’t know or thought that dividing up and sharing customers with rivals was legal (24% said ‘don’t know’ and 35% actually thought it was legal)

Examples of CMA action include:

  • Two of the biggest suppliers of charcoal and coal for households in the UK were fined £3.4 million for taking part in a market sharing cartel.
  • Water tank firms were fined over £2.6 million, after they formed a cartel to divide up customers, fix minimum prices and share commercially sensitive information for tanks used in large construction projects (such as schools and hospitals).
  • Somerset estate agents were fined over £370,000 for fixing minimum commission rates, such that local home owners had been denied a fair deal when selling their property. The CMA also secured the disqualification of 2 company directors in this case.
  • An Amazon Marketplace seller was fined over £160,000 and its director disqualified from running a company after agreeing to fix the prices of popular posters and frames with a competitor.

Howard Cartlidge, Senior Director of Cartels at the CMA, said, “Businesses that fix prices or rig contracts are breaking the law and ripping people off. The victims are customers and other businesses, who are getting cheated out of a fair deal.  If you know of something illegal – do the right thing and tell us about it.”

Since April 2015 the CMA has issued over £155 million in fines following investigations into anti-competitive practices and it is currently investigating 15 cases including in construction services, roofing materials and estate agency.

Visit the CMA anti-cartel website

 

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Protect welcomes new trustee and employment lawyer David Widdowson, who has extensive whistleblowing expertise, to the Protect Board.

David is a long-standing member of the Employment Lawyers Association, and a member and subsequent chair of a working party which commented on the two abortive private members bills and then on the bill which became the Public Interest Disclosure Act 1998.  Comments at the consultative stage were influential in the ultimate drafting of the bill and formed the basis of a very successful relationship with the DTi, now BEIS (Department for Business, Energy & Industrial Strategy). He also has trustee experience.

He said, “I am really pleased to be able to offer my support to Protect which does such important work. I believe I can bring to the board strong technical knowledge of the law relating to whistleblowing, extensive experience in its practical application as well as relevant experience of acting as a trustee.”

David, has advised a number of NHS Trusts and other public sector bodies on implementation of whistleblowing procedures and has also advised individual whistleblowers. He was instructed by NHS London to investigate allegations connected with the Baby P case made by a senior clinician from the trust concerned.

Protect Chief Executive Francesca West said, “We are delighted to welcome David aboard as a trustee. His extensive knowledge and expertise in employment law and whistleblowing is going to be invaluable to our work and will help us support more whistleblowers to safely raise concerns.”

 

 

 

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