Whistleblowing: are you protected?

Study uncovers out-of-date policies

May 29, 2014

Source: SuperStock

Notes of concern: most universities could not guarantee confidentiality

Two-thirds of universities are using out-of-date whistleblowing procedures, ignoring new laws that potentially extend protections to more of those who highlight wrongdoing, a report has suggested.

Most university policies fail to reflect 2013 amendments to legislation, which specify that those speaking out must believe that they are acting in the “public interest” to have their concerns qualify as a public interest disclosure. But the change also removed the requirements for whistleblowers to be acting in “good faith” to qualify for protection.

The research – led by David Lewis, professor of employment law at Middlesex University and convener of the International Whistleblowing Research Network – also praises the 67 per cent of universities who consider whistleblowing reports made anonymously, on a discretionary basis.

“We regard this as important because a blanket policy of ignoring anonymous whistleblowing could lead to dangerous or damaging situations being ignored,” says the research, funded by Middlesex’s School of Law and published in the university’s research repository.

Professor Lewis said: “Whether you are [a] FTSE 100 [company] or a SME [small or medium-sized enterprise], private or public, whistleblowing policies and procedures which are effective, clear and accessible at all times are essential. If these do not exist or are hidden from view, people will have no confidence that they can report their concerns.

“Policies and procedures should be carefully worded as they can have important practical and legal implications. They should make it clear there is an expectation that concerns about wrongdoing are raised internally and guarantee that those who make a report will be protected against retaliation.”

Employees who bring information about wrongdoing to the attention of their employer or a relevant organisation are given legal protections in specified circumstances under the Public Interest Disclosure Act 1998.

The Middlesex report looked at publicly available whistleblowing policies and used Freedom of Information requests where no policy was obtainable in the public domain. Information about policies and procedures were obtained for 143 higher education institutions out of 166 targeted. Of the 143 universities, 136 (95 per cent) provided whistleblowers with confidentiality. However, 134 (94 per cent) “indicated that it may not be possible to maintain confidentiality in all circumstances”.

In terms of when policies came into force, information was obtained on 117 of the 143 universities. “The fact that 81 (69 per cent) policies and procedures pre-dated the legislative amendments suggests that attention needs to be given to the implications,” says the research, titled Report of a Survey on Whistleblowing Procedures in UK Universities.

The Enterprise and Regulatory Reform Act 2013 removed the “good faith” requirement – extending whistleblower protection to those who make disclosures in bad faith, for example with the motivations of financial gain or spite.

But at 111 universities out of 143 (78 per cent), procedures stated that those who report a concern must be acting in good faith.

“In light of the legislative changes made last year, we recommend that ‘good faith’ should be removed from all university policies/procedures as a prerequisite for protection. In our view, focusing on a whistleblower’s motive is a distraction from the message being conveyed,” the report says.

john.morgan@tsleducation.com

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