Gagging could backfire

August 4, 2000

Universities are misrepresenting whistleblowing laws to try to discourage staff from speaking out to regulatory authorities or to the press, according to experts. They think the attempts will backfire and result in more legal protection for staff who go to the press.

Guy Dehn, chief executive of the whistleblowing charity Public Concern at Work, said he was concerned that universities had set up weak internal procedures in response to the Public Interest Disclosure Act.

"In some places we have seen that they are internalising the whole thing," he said. "The problems with that is they do not recognise that disclosures can be made outside." Ironically, this weak drafting is making it safer for staff to blow the whistle in public.

Under the act, whistleblowers - who must demonstrate that they have an honest and reasonable suspicion that malpractice has occurred, is occurring or is likely to occur - are protected on a sliding scale, depending on how they make their disclosures.

The law offers almost total protection from recrimination for those who follow internal whistleblowing procedures. This usually means reporting to line managers so that matters can be handled internally.

Those who go to prescribed regulatory bodies will be safe from recrimination if they can show that they honestly and reasonably believe that the information, or any allegations, are substantially true.

Those who go to non-prescribed bodies, including the press, are protected as long as the disclosures can also be shown to be "reasonable in the circumstances and not made for personal gain", Mr Dehn said. Such people would usually have to demonstrate that they reasonably believed they would be victimised if they raised the matters internally.

Mr Dehn said: "There is some evidence that universities are beginning to address the law. But a lot of universities' procedures say that if staff have concerns, they should go to their head of department or the clerk to the governors. That is, that they should not go outside.

"But this kind of advice will trigger the protection for wider disclosures outside the institutions. They are strengthening employees' right to go to the media.

"Employers should make it clear that it is entirely safe to go to prescribed outside regulators. If they do not, it is then safe to make external disclosures to other bodies."

The legislation, which has been in place for just over a year, has been hailed as a great success, especially last month. In July, Antonio Fernandes was awarded Pounds 300,000. The accountant had been unfairly sacked after he reported his managing director for claiming Pounds 316,000 in unauthorised expenses. Also last month, in an out-of-court settlement, the Manufacturing Science and Finance union paid about Pounds 100,000 in costs and compensation to a former employee who alleged that the general secretary had fiddled his expenses.

So far, there are no known results from the tertiary education sector, and details of claims under the act are kept secret. But The THES has already reported on four cases that will be heard later this year and early next year. They are against Surrey, Derby and Middlesex universities and North Birmingham College.

Academics also have the legal freedom to "put forward new ideas and controversial or unpopular opinions" without fear of recrimination from their employers. The second report of the Nolan Committee of Standards in Public Life said this should include views regarding the immediate concerns about standards and management in his or her own institution or elsewhere in higher education.

Whistleblowers' summer break

Whistleblowers is taking a break in August and will return in September. Readers with concerns about malpractice or mismanagement of any kind in higher or further education can contact The THES in complete confidence, or anonymously.

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