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How we can better support whistleblowers and protect them from victimisation? Will new regulations change what we can hope for?  These were the themes of the CREW ( Centre for Research on Employment and Work) seminar: Whistleblowing: new regulations, new contexts, same old?’ held at the University of Greenwich.

However good the law or company policies, there is too often a disconnect or, as one speaker put it, a ‘de-coupling between the talk and the walk’ when it comes to treatment after an individual has blown the whistle.

First speaker, Meghan Van Portfliet (Queen’s University Belfast) looked at how whistleblowers  become labelled after speaking up, and their different responses to accepting or rejecting such a label.  Meghan’s research considers the role of advocacy groups in tackling the stigmatisation of whistleblowers.  Groups (like Protect) can offer advice and support to whistleblowers on their journey and, crucially, challenge negative views and reinforce positive ones about the value of whistleblowers to society.

The value of whistleblowing was continued in the talk from Professor A J Brown from Griffith University, Brisbane. His research on attitudes of employees and managers shows a strong belief that whistleblowing is good for business – the most effective exposure of wrongdoing comes from the individuals working in an organisation.  But even when attitudes are so positive, there is a problem with outcomes for the whistleblowers themselves.  Professor Brown described the “collateral damage” of stress and isolation that comes with the whistleblowing journey.  Even when there is no intentional victimisation or “reprisal”, few organisations look at how to support the whistleblower after the disclosure has been made and the investigation closed.  Whistleblowers may still experience “repercussions” if their performance drops due to the collateral damage. There is clearly a need for organisations to track outcomes for whistleblowers over the longer term

In Australia, the first laws have been introduced making companies liable not just for having effective whistleblowing processes in place but with criminal and civil sanctions when a company fails to protect a whistleblower from detriment.  It is too soon to tell if the approach will work but imposing a duty to support, protect and prevent detrimental acts towards whistleblowers is an interesting idea.

Dr Eva Tsahuridu (RMIT University, Melbourne) and Dr Wim Vandekerckhove (University of Greenwich) are researching the tricky issue of what can we expect of professionals who spot wrongdoing.  Eva looked at the reporting duties on accountants in the light of new international guidance on suspected NOCLAR (non compliance with laws and regulations).  She posed the question : if it is not mandatory for a professional to disclose wrongdoing, how do we assess the behaviour of a professional who fails to make a disclosure but whose code nevertheless requires them to act in the public interest?

Finally, Pim Verschuuren at University of Lausanne explored the complexity of whistleblowing in the international sporting arena.  As individual athletes are rarely “employees” they often lack legal protection if they raise concerns about, for example, match fixing or doping.    The remoteness of the international body from the whistleblower is a problem.   There is a “cognitive dissonance” between values  espoused by the international body and the fear of reprisal and lack of protection on the ground.  Too often the whistleblowing processes at international level address only the means of making disclosures, not the ends of stopping the harm.

At Protect we’re working with a number of organisations who want to improve their practices and  benchmark the effectiveness of their whistleblowing policies and procedures. The CREW research findings confirm that victimisation and stigmatising of whistleblowers remains a huge problem, and potentially deters others from raising concerns.  Can your employer show that they do “walk the talk” when it comes to protecting whistleblowers from reprisal and repercussion?

By Interim Director of Policy and Legal, Elizabeth Gardiner

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With so many corporate scandals making headline news on a daily basis, can you be sure your company has a healthy speak up culture? Are you confident your staff are comfortable to speak up about a wrongdoing they have witnessed at work? 

With new guidelines introduced by the UK Corporate Governance Code which explicitly states “the workforce should be able to raise any matters of concern”, it is more important than ever to foster a positive ‘speak up’ and ‘listen up’ culture. 

The City of London Corporation are inviting listed companies to attend a two-hour breakfast briefing on July 8, which includes a roundtable session, to better understand best practice speak up arrangements.

This event will explore how organisations can implement appropriate arrangements to encourage and support employees to raise concerns. It is not only the regulators who are taking an increasing interest in this topic, but also investors who may rely on the reporting of these arrangements as an indication of a company’s culture and overall health.

Catherine McGuinness, Chair, Policy and Resources Committee, City of London Corporation will welcome delegates. As Chair of the Policy Committee, Catherine is Deputy Chair of The City UK, the promotional body for the UK financial services industry, and the International Regulatory Strategy Group.

This will be followed by a presentation by Senior Behavioural Scientist Kate Coombs on the Banking Standards Board’s recent Annual Review and its focus on speaking and listening up.

Protect Chief Executive Francesca West will discuss the importance of effective speak up arrangements and Protect’s 360 Benchmark and then Mirza Baig, Global Head of Governance, Aviva Investors, will present on the investor perspective and the importance of reporting in this context. A brief roundtable exercise focusing on key aspects of implementing and reporting on effective speak up arrangements will also take place.

Fostering a positive speak up & listen up culture – Agenda:

08:00-08:30 Registration and networking with light breakfast served

08:30-08:40 Welcome from Catherine McGuinness

08:40-08:55 Presentation by Kate Coombs on the Banking Standards Board’s recent Annual Review and its focus on speaking and listening up

08:55-09:10 Presentation by Francesca West on the importance of effective speak up arrangements and Protect’s 360 Benchmark

09:10-09:25 Presentation by Mirza Baig on the investor perspective and the importance of reporting in this context

09:25-10:20 Roundtable exercise focusing on key aspects of implementing and reporting on effective speak up arrangements and feedback to the wider group

10:20-10:30 Closing remarks

Please note that places are limited so will be allocated on a first-come first-served basis. Please feel free to share with relevant colleagues.

If you are interested in attending, or would like more information, please email Pro.Events@cityoflondon.gov.uk

 

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This week the Charity Commission published its report into the Oxfam scandal and severely criticised Oxfam for the way it dealt with claims of serious sexual misconduct by its staff in Haiti.

The commission said there was a “culture of poor behaviour” at the charity, and issued it with an official warning over its “mismanagement”.

Whistleblower Helen Evans, who worked as Oxfam’s global head of safeguarding, resigned in 2015 because managers at the charity wouldn’t listen to her concerns.

Helen, talking to The Times, said, “Money talks, we need donors to hold charities to account. Donors, especially governments, must stop treating safeguarding as a tick box exercise that can be satisfied with policies.  They must hold charities to account by mandating the design of safe programmes, demanding robust action against perpetrators, commissioning safeguarding audits and withholding funds if necessary.

“The public though rightly expect charities to adhere to the highest standards. Today’s Charity Commission report and last year’s international development committee select report into the aid sector show we have fallen short. I still believe in the aid sector.  I believe it has a vital role in alleviating poverty and suffering.  I also fear we risk repeating history in future years if we don’t fundamentally reform the mechanisms for holding the agencies to account.”

Protect is working with the Charity Commission on a pilot to support charity workers and volunteers. What this means is that if a worker or volunteer has concerns over wrongdoing at the charity they work or volunteer for and want independent advice on how to raise it effectively, they can call Protect. If appropriate, our Protect advisers can discuss whether it is a regulatory matter for the Charity Commission.

The third sector is, of course, vast with 168,000 registered charities in England and Wales, varying in size, governance and speciality. Not all will be well run and like any organisation, risks, malpractice and dangers will be prevalent.

We find it often takes a scandal for organisations to realise the benefits of strong whistleblowing arrangements, and how a healthy speak up culture can help or prevent wrongdoing. Just as important is a strong listening culture and training to know how to handle concerns effectively.

We hope to work with many more of the UK’s 168,000 charities. Call Protect’s Business Support team on 020 3117 2525.

Watch whistleblower Helen Evans discuss the Charity Commission report

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A draft law proposed by Spanish anti-corruption activist group Xnet, is set to make Spain the first country in the European Union to transpose the European Directive for the Whistleblowers’ Protection.

The Draft Law was registered shortly after the opening of the registry in the Parliament, on 30 May. It was registered with the support of 15 MPs. On Thursday, June 13, the draft law will be presented to the press.

Xnet is a pioneering organisation in Spain leading the way in the defence of whistleblowers, anticorruption and democracy innovation in the digital era, and a member of WIN, Whistleblowing International Network (WIN) which is a founding partner of Protect.

The Xnet draft law marks an extremely important milestone as the first transposition of the European Whistleblowers’ Directive, and Xnet hopes it will prove to be an example that is replicated to the same standards across many other European member states.

Executive Director of WIN, Anna Myers, said, “The only way for whistleblower protection laws to make a real difference is if they are developed and supported by civil society who understand the challenges and the opportunities that protecting whistleblowers has for benefitting the public. WIN is delighted that Xnet has taken a lead in Europe to integrate the new EU Directive in a whistleblower law for Spain that reflects the Spanish experience and addresses the legal and social challenges that face public interest whistleblowers in that country.  Now is the time to push for the progressive laws across Europe that really make a difference.”

As Xnet text is a milestone for the fight for whistleblowers in Europe, the following organisations and persons (all of whom have extensive experience in the fight for regulations to defend those who blow the whistle on systemic abuses)  support the Comprehensive Whistleblowers’ Law created by Xnet:

Whistleblowing International Network (WIN) – Anna Myers
The Signals – Delphine Halgand
– Government Accountability Project – Tom Devine
European Centre for Whistleblower Rights and the Southeast Europe Coalition on Whistleblower Protection.
Government Accountability Project of the National Whistleblowers Centre.
Eva Joly, magistrate and former MEP
Protect (formerly Public Concern at Work)
European Center for Whistleblower Rights – Mark Worth

Read the Xnet draft law proposal in full

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The Women and Equalities Committee have  published (June 11) their long awaited report on the use of Non Disclosure Agreements in discrimination cases – which clearly shows there is much room for improvement.

The inquiry – which Protect were asked to respond to by the Women and Equalities Committee – follows the committee’s work on sexual harassment in the workplace which had highlighted that some allegations of sexual harassment were being ‘dealt with’ using settlement agreements.  The committee set out to establish whether the picture was similar for people who had suffered other forms of unlawful discrimination and harassment and to follow up on the recommendations made in their earlier report.  Much of this work was also a reaction to the #Metoo movement which exposed the woeful culture in many workplaces and that many were being prevented from speaking out about unlawful behaviour.

The evidence gathered by the Committee clearly shows there needs to be a package of measures to improve matters.  The misuse of NDAs is one element of a wider system of legislative, regulatory and judicial measures and processes that are failing to protect workers from discrimination and abuse of power.

Here at Protect, we could not agree more with the Committee’s recommendations.  Many of the suggested reforms would also make a huge difference to those seeking protection under the whistleblowing legislation (the Public Interest Disclosure Act – ‘PIDA’).  This is particularly so  when it comes to the piecemeal reform of the legislation in this area and we are calling for a thorough review of PIDA along with this vital work on discrimination and harassment.

In summary, the committee have called for the following reforms:

  • Awareness campaign required for employers and employees about how to handle grievances fairly and effectively, including signposting to relevant guidance and support
  • Investigation required of all discrimination and harassment cases regardless of whether or not settlement is reached
  • Basic reference required in all cases (so employers cannot trade reference for settlement)
  • Noted risk of blacklisting caused by publication of judgments online – but no recommendations – we would say job applicant protection is required for all ET claims to mitigate the risk of this (in all relevant employment protection legislation ie also in whistleblowing protection legislation)
  • Time limit for claims should be extended for discrimination and sexual harassmsent  from 3 to 6 months – this should apply to PIDA claims too
  • Equality review of ETS required
  • Review of legal aid for discrimination and harassment (plus whistleblowing claims)
  • Review of practical support available for litigants in person in all employment protection legislation
  • Costs – detailed guidance for ET judges and litigants as to what behaviour would be deemed to be unreasonable – refusal to sign an NDA should never be deemed to be unreasonable
  • Review of awards and punitive damages as well as Vento guidelines (for non pecuniary damage claims) – plus a presumption that employers should pay litigants legal costs if  a claim is lost (referred to as one way costs shifting) – again this is also needed in whistleblowing claims
  • Legislation required to ensure that NDAs cannot be used to prevent legitimate discussion of allegations of unlawful discrimination or harassment, and in the public interest stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives
  • Piecemeal amendment of the
  • Equality Act and PIDA is problematic – HMG to consider how PIDA interacts with discrimination law and whether the public interest test is workable
  • It should be an offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence
  • Legislation required to prevent NDA’s being used to stop others from being able to take a claim – consider pay secrecy provisions in EQA for this
  • Professional disciplinary offence to use inappropriate NDAs and confidentiality clauses
  • Employers to make a financial contribution sufficient to cover the costs of the worker’s legal advice on any settlement agreement proposed by the employer, including the content and effect of any confidentiality, non-derogatory or similar clauses, and any concerns about the reasonableness or enforceability of those clauses together with the cost of negotiation.  This should be payable regardless of whether agreement is signed
  • Legislation required within two years on wording of confidentiality, NDA and non derogatory clauses requiring them to:
    •  be clear and specific about what information cannot be shared and with whom;
    • contain agreements about acceptable forms of wording that the signatory can use, for example in job interviews or to respond to queries by colleagues, family and friends;
    • contain clear, plain English explanations of the effect of clauses and their limits, for example in relation to whistleblowing.
  • Standard wording and cost consequences for failing to provide standard wording
  • Rigorous enforcement required by regulators of legal professions
  • While code of practice welcome – there is still a need for a positive duty on employers to prevent discrimination or sexual harassment. This should include substantial financial penalties for breach
  • Named senior manager on board to oversee anti discrimination and sexual harassment as well as use of NDA’s
  • Guidance required for the ‘reporting up’ of allegations, particularly by lawyers
  • Data collection on discrimination and harassment cases is required as well as info on settlement agreements
  • Corporate governance around discrimination and harassment to be strengthened with sanctions for poor performance

We will be keeping a close eye on the pace of reform in this area and calling for the same considerations to be applied to PIDA.

Read Protect’s NDA consultation response

by Cathy James, Protect Senior Legal Consultant

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Whistleblowing isn’t easy. We know that. Protect has been advising whistleblowers how to safely raise concerns for the past 25 years through our confidential advice line. In that time, our trained advisers have handled more than 40,000 whistleblowing cases.

Calls to our advice line from people wanting advice on how to raise a concern from the third sector has risen year-on-year from 168 calls in 2016, 241 in 2017, and 303 calls last year. We are fully expecting 2019 to see a further rise in calls. The most common concern is financial malpractice within a charity.

The third sector is, of course, vast with 168,000 registered charities in England and Wales, varying in size, governance and speciality. Not all will be well run and like any organisation, risks, malpractice and dangers will be prevalent.

At the beginning of June, we launched a six-month advice pilot with the Charity Commission to support charity workers and volunteers.  What this means is that if a worker or volunteer has concerns over wrongdoing at the charity they work or volunteer for and want independent advice on how to raise it effectively, they can call Protect. If appropriate, our Protect advisers can discuss whether it is a regulatory matter for the Charity Commission.

Charity Commission Chief Executive Helen Stephenson said, “We are pleased to be working with Protect to pilot this important service that will help people report serious concerns about charities to us. The helpline is a key part of wider improvements to our support to people that make the brave decision to report wrongdoing. Blowing the whistle takes courage and integrity, and I expect the additional advice that Protect will offer to equip people with valuable confidence and clarity about how best to proceed.”

We hope the pilot will go some way to making whistleblowing for charity staff and volunteers that bit easier and send out a much needed message of support.

And finally, Protect would like to reassure all third sector staff and volunteers that a call to our advice line is confidential, protected by legal privilege and handled by a specially trained adviser.

The Protect Advice line operates Monday- Friday between 9-6pm on Freephone 0800 055 7214

By Interim Chief Executive Jon Cunningham

 

 

 

 

 

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Protect joined hundreds of other walkers in the London Legal Walk on June 17, which is held every year to raise money for legal centres who provide free advice and representation to individuals.

The 10k walk this year, was the biggest by far, with all Magic Circle firms and many top chambers participating to support legal advice centres. The core of our work at Protect is providing free advice to individuals who are considering raising, or have raised, whistleblowing concerns about wrongdoing at work and we are raising money so that we can continue to provide free advice in the years to come.

If you would like to donate, you can still donate via the London Legal Walk website

 

 

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District Judge Claire Gilham who blew the whistle on the stresses and dangers faced by those working in under-resourced courts, is to have her case against the Ministry of Justice heard at the Supreme Court between June 5-6.

Protect, formerly Public Concern at Work, are intervening in the Supreme Court case and have instructed law firm Leigh Day to represent our case.

As a District Judge at Warrington County Court Claire Gilham raised concerns in 2013 and claims  no action was taken and that she was subjected to bullying and the stress of greater workloads. She argues in her legal case she suffered detriments as a result of blowing the whistle.

Currently, most office holders, such as judges or non-executive directors, do not have the same legal protection as other workers if they suffer a detriment after having ‘blown the whistle’. However, police officers, who are also deemed to be office holders, do have whistleblowing protection under current legislation.

Head of Advocacy and Advice at Protect, Bob Matheson, said, “Protect intervenes in cases where there is a wider public policy issue at stake.  Here the issue is who should have protection – and our view is that the law is too narrowly drawn if judges are excluded from protection when they identify concerns.  We want the government to conduct a wider review of UK whistleblowing legislation, but until then, the Courts can shape the law.”

Leigh Day also represented Protect following their intervention in the same case when it was heard in the Court of Appeal in 2017. Protect will argue that judges should be entitled to whistleblowing protection and that to deprive judges of whistleblowing protection is incompatible with Article 10 and Article 14 of the European Convention on Human Rights.

Kiran Daurkaemployment partner at Leigh Day who is representing Protect, said: “As part of ensuring we have a fair and effective legal system it is important that those working at the heart of the administration of justice have adequate protections in place should they need to raise concerns.  It is essential that the current legal framework for whistleblower protection is compatible with human rights legislation.  Whistleblower protection is clearly intended to have wide application to support and encourage individuals to speak out about wrongdoing.”

Protect have been calling on the government to review UK whistleblowing legislation, the Public Interest Disclosure Act 1998 which it says is in danger of falling behind new EU whistleblowing legislation (due to be implemented across the EU by 2021).  The EU Directive has a much broader scope which allows fpr protection of many more whistleblowers.

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Protect attended the Voices of Justice International Conference on Corporate Crime Reporting and Whistleblower’s Protection, organised by the Centre for Financial and Corporate Integrity at Coventry University in partnership with Constantine Cannon, WhistleblowersUK and MLROs.com

The conference, held to explore the close relationship between corporate crime reporting and whistleblowing within the public and private sector, and to demonstrate the importance of whistleblowers within this field, began with an introductory presentation, including a keynote speech from Rt Hon. Baroness Kramer on the purpose of the APPG for Whistleblowing and the importance of placing the whistleblower’s perspective at the forefront to bring about effective legislative change.

This was followed by sessions on comparing various countries’ attitudes on corporate crime reporting and legal protections for whistleblowers outside and within the EU, and distressing experiences told by whistleblowers themselves.

Extensive talks and debates were held about implementing rewards systems for whistleblowers in the UK similar to America, such as the rewards systems of the Communities Futures Trading Commission, Internal Revenue Service, and Securities and Exchange Commission. Whilst it was argued that the UK should adopt a culture of rewarding whistleblowers for bravely raising concerns as opposed to solely when they face a loss for doing so, some pointed out the issue of applicability of rewards schemes for concerns outside of financial malpractice, for instance safeguarding, where there is no financial penalty to divide up.

The inefficiencies of whistleblowing arrangements for those in the financial sector were explored and the outstanding culture of fear, futility and reprisal. Dr Constantino Grasso highlighted the significance of the new EU whistleblowing Directive, especially considering that only 10 out of 28 EU countries currently have extensive legal whistleblowing protections. There were discussions on the need to investigate and eliminate the link between whistleblowers raising concerns and consequential retaliation and persecution, as well as an exploration of how this practice has been ingrained culturally for centuries. The tales of the brave actions by whistleblowers John Christensen, Mark Lille, Martin Woods and Martin Bright (on behalf of Katharine Gunn)  illustrated the difficulty of not only trying to enable their concerns to be addressed but also the psychological and at times life-threatening obstacles faced as a result of whistleblowing.

Even though diverse perspectives and experiences were expressed that day, one key message was made incredibly clear – that whistleblowers are vital information providers in order to combat wrongdoing, achieve justice and invoke change in society. This was particularly emphasised by the fact that 40% of enforcement investigations and actions taken by the CFTC involve whistleblowers. Furthermore, it was highlighted that Wikileaks, despite its controversy, was instrumental in creating legislative change and the EU whistleblowing Directive probably would not have come into fruition without Luxleaks whistleblower Antoine Deltour. Strengthening legal protections and reporting channels for whistleblowers is crucial not only to safeguard the culture, integrity and reputation of public and private organisations, but to protect the public interest at large.

 

By Protect Adviser Nneka Egbuji

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We have a new opportunity for three students to volunteer with us to undertake legal research (read, categorise and summarise employment tribunal judgments involving a whistleblowing (Public Interest Disclosure Act 1998) claim, but also to assist with general admin duties. The volunteers may also have the opportunity to observe some advice calls to clients. 

Whistleblowing charity Protect (Formerly Public Concern at Work)  is an independent charity and legal advice centre. We were set up in 1993 in response to a series of scandals and tragedies in the late 1980s and early 1990s which included the sinking of the Herald of Free Enterprise ferry in which 193 people died in 1987, the Piper Alpha oil rig explosion and the collapse of the BCCI amidst widespread fraud in 1990.  Official inquiries after each of these disasters revealed that all too often staff had known of dangers but were too scared to speak up or, if they did, that they did so in the wrong way or to the wrong person and were ignored and/or dismissed.

We have led developments on whistleblowing as a good governance and risk management tool in the UK and abroad. We provide a confidential advice line for individuals with whistleblowing dilemmas; professional support to organisations and policy advice to Government and Members of Parliament.  The charity’s work has been commended by ministers, the Court of Appeal, leading newspapers, the Committee on Standards in Public Life and various public inquiries.

We expect volunteers to be able to commit for 1 or 2 days a day a week (09:30 –17:30) for a minimum 6-month period, commencing June 2019.We currently offer expenses to volunteers to cover travel costs and lunch.

Eligibility:

To be eligible for any of these roles you must be:

  • A Law graduate (or GDL). In special cases we will consider candidates enrolled on the GDL
  • Committed to the pro bono ethic of providing highly professional legal services to people who cannot afford to pay for them or who are otherwise vulnerable;
  • Able to commit to the role for the relevant period;
  • Able to commit the relevant time on a weekly basis

How to apply If you would like to apply for this role, please send your CV with a cover letter (no more than one side of A4 in size 12 font) explaining your interest, commitment, availability and highlighting relevant experience or abilities to Hari Raithatha (hari@protect-advice.org.uk) no later than Monday June 10.

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