Whistleblowing hits the Headlines

The interview I did for the BBC’s investigation for the Sunday Politics Show into the increasing use of settlement agreements or ‘gagging’ orders seems to have come at a time when the media spotlight is being turned firmly on the topic of whistleblowing.

Just last week the health secretary called for greater support for NHS whistleblowers in order to increase transparency and to learn from those that had the courage to speak out. In the case of the NHS, scandals and even premature deaths or inappropriate surgery could have been avoided due to shortcomings in care or bullying behaviour.

In my previous blog, I talked about how settlement agreements or so called non-disclosure agreements (NDAs) could be masking unacceptable management behaviours such as bullying and how even if people have signed NDAs they can still report malpractices within an organisation.

Whistleblowing is a complex matter and individuals reporting such dereliction of duties and making disclosures must have reasonable belief that he or she is acting in the public interest and the disclosure which they make must be ‘qualifying and protected’.

Those components come with stringent criteria which are laid out in the Employment Rights Act 1996 and the amendments introduced by the Public Interest Disclosure Act 1998 and protects the rights of most workers in the public, private and voluntary sectors.

A ‘qualifying disclosure’ might be something like a criminal offence, a breach of a legal obligation e.g. a breach of health and safety or a fraud or the deliberate covering up of one of these wrong doings.

In order to make  ‘qualifying disclosure’  ‘protected’ it should be made to the right person in the right way, i.e.  in accordance with company policies to the employer, or usually, for fear of reprisals, to a number of prescribed people or bodies. A qualifying protected disclosure may also arise through obtaining legal advice.

Prescribed bodes are official, regulatory or professional bodies that will listen and act on a disclosure, e.g. forr tax issues the HMRC, for business, finance or fraud, the Serious Fraud Office or any number of bodies regarding the welfare of children. There is a full list of prescribed persons or bodies on the gov.uk website. Individuals may make protected and qualifying disclosures to the media, however in order for the disclosure to obtain the necessary legal protection complex conditions need to be satisfied.

So none of these would inhibit an individual from entering into or raising a whistle blowing allegation following entering into a settlement agreement. However, as stated above, the criteria set out for protection under whistle blowing is complex. Invariably, individuals that enter into a NDAs and then accept a payment from the company, are effectively agreeing that they would not make such allegations, essentially in return for them leaving quietly.

Companies, local authorities and even charities are spending millions of pounds on NDAs which could be hiding not just poor workforce practices but also illegal activities such as racist or sexual behaviour. Just two days ago there was further media coverage into Sir Phillip Green who is still fighting investigations into whether his behaviour is ‘passionate, over exuberant and hot headed’ (according to his lawyers) or a climate of fear, bullying, sexual and racial harassment according to a number of former employees.

As an employer, it is good practice to create an open, transparent and safe working, NDAs should only be used as a matter of last resort and not to cover up outdated, illegal and inexcusable behaviour and protect powerful individuals or malpractice in the workplace.