Whistleblowing in Care: Speaking Up When Lives Are on the Line

By Chris Kisby, employment partner at Gateley Legal (https://gateleyplc.com/gateley-legal/)

The stakes in the care sector between doing the right thing and the wrong thing can, on occasion, be a matter of life and death, especially when it comes to those who are extremely vulnerable due to their condition or age. As such, whistleblowing within the sector can, when done properly and in the public interest, have a positive outcome for patients, their families, carers and employers.

What is whistleblowing?

Put simply, whistleblowing is the action someone (typically an employee or ex-employee) takes to report wrongdoing in the workplace that falls under one of the types of failure, wrongdoing or malpractice listed in the Employment Rights Act 1996. The act of reporting any such wrongdoing to a prescribed person is known as making a ‘protected disclosure’.

How to make a protected disclosure?

As a starting point, any disclosure made needs to be a ‘qualifying’ disclosure, meaning that the individual making the disclosure has a ‘reasonable belief’ that the information they’re disclosing relates to one or more of the types of wrongdoing and that it’s in the public interest to make the disclosure. Relevant issues that may be found within the care sector could include:
• Danger to the health and safety of an individual – whether that be a patient, member of staff, visitor, etc. – typically related to the quality of service provided or conditions
• A criminal offence – for example, money or possessions being taken from vulnerable patients
• Breach of a legal obligation – for example, a breach of a legal duty of care owed to a patient, or a breach of a legal obligation to staff
• Miscarriage of justice, such as wrongful accusations made against a particular member of staff or a patient.

What process should be followed to ‘blow the whistle’?

An employee looking to make a protected disclosure should refer to their employers’ whistleblowing policy to see what steps need to be taken. Typically, a whistleblowing policy will confirm a specific point of contact with whom a disclosure can be made. This will usually be an HR representative, a compliance officer, or a line manager if there is no one in the aforementioned positions.

If there is no whistleblowing policy, an employee looking to make a disclosure would be advised to speak to their HR team or line manager about how to proceed. However, if their HR team or line manager is the subject matter of the issue, employees should approach someone else in a senior position to ask for advice.

Legal protections

There are two levels of protection for whistleblowers under the Employment Rights Act 1996:

The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a protected disclosure. Workers are also protected from being subjected to any detriment on the ground that they have made a protected disclosure. Such detrimental treatment would include, for instance, the whistleblower experiencing bullying, demotion, or being excluded from meetings, etc.

There is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service. However, if an employment tribunal believes that a disclosure was made in bad faith (ie, based on untruths or with the intention of causing malice), it could reduce any compensation award by up to 25%.

Support

Blowing the whistle can be a daunting and lonely process for those who make a disclosure. Where there is a ‘protected disclosure’, employers should assume that the disclosure is being made in good faith, and often for the benefit of the business. As such, they should look to support the employee. This could include, for example, offering them access to confidential and impartial counselling to help them through what can be a stressful and emotional experience of whistleblowing.

Top tips for employers

• Have a good whistleblowing policy and ensure employees know about its existence.
• Make sure a nominated whistleblowing officer/s are trained on what their role requires.
• Treat all potential disclosures seriously and investigate as appropriate.
• Make sure that lessons are taken from all disclosures to ensure things improve.
• Do not seek to identify the whistleblower in cases where the disclosure is anonymous.
• Do not exclude or alienate the whistleblower.
• Do not assume the relationship between the business and the whistleblower is irreparable in cases where the disclosure causes conflict.

Top tips for employees

• Take time to read and digest the company whistleblowing policy.
• Raise concerns at the earliest opportunity, in order to potentially limit the issue from becoming more serious.
• Seek advice, whether that be from an internal whistleblowing officer or someone externally, before proceeding with the disclosure.
• Be prepared to be challenged on your claims.
• Do not rely on memory to recall events or previous meetings; it’s important to keep notes of dates, conversations and outcomes.