Whistling in the dark

July 26, 1996

Staff must be free to speak out in the public interest, says Dermot Feenan. Whistleblowing is risky. Disclosure about perceived wrongdoing at work can harm both the whistleblower and employer. Whistleblowers can face reprisal, including dismissal. However concerns are resolved, employers can face protracted internal wrangling and damage to business.

In higher education the risks intensify. Academic freedom may be at stake. Reputations of academics and institutions may be jeopardised. Yet whistleblowing can reveal concerns about unlawful or improper practices that might otherwise disappear in internal bureaucracy or cover-up, or remain hidden because an employee fears retaliation.

Support for whistleblowing is growing. The Nolan committee on standards in public life, set up by the Government in the wake of widespread concern about government sleaze, supports whistleblowing in the public interest. It stresses the public interest in the conduct of institutions - they spend large sums of public money, their decisions are in many respects part of public policy and their actions may have significant impact on local communities. Public interest also lies in the education of students, academic freedoms and standards, and the conduct of research.

The public interest also requires that institutions should be protected from false and malicious allegations, perhaps by deterrent penalties made in good faith. But the need to reverse fear about raising concerns suggests that whistleblowers should not be penalised for good faith disclosure. What constitutes legitimate public interest disclosure? Unlawful activity or serious danger to health and safety are likely candidates. But what about abuse of authority or maladministration?

The charity Public Concern at Work supports whistleblowing. Started in 1993, one of its aims is to provide free and confidential help to employees and others about serious malpractice and public dangers in the workplace. The charity's second annual report notes "a growing recognition that those who sound the alarm on serious malpractice are not being disloyal to their employers, but deserve public thanks and support, rather than punishment and humiliation". In its submission to the Nolan committee's most recent inquiry into the standards of local public spending bodies the charity notes considerable concern about the ability of staff, and lecturers in particular, to raise concerns about the manner in which institutions are governed and about impropriety in particular.

An apparent increase in high profile disclosures in higher education reveals a sea change in employee attitudes. Traditional deference to institutional authority, and absolute loyalty to collegial or corporate values are giving way to greater criticism of institutional aims and stronger commitment to accountability and transparency. But the cases underline the need for suitable protection of whistleblowing.

When John Pickering, former deputy vice chancellor at Portsmouth University, pursued complaints about deception over expenses claims by Neil Merritt, then vice chancellor, the university governors attempted to keep the matter from staff. Pickering was forced to resign, signing a gagging clause about the matter in his severance agreement. When the scandal became public, Merritt quit.

The controversy over academic standards and conduct at University College Swansea in the late 1980s and early 1990s revealed the use of a very restrictive confidentiality clause in the severance document of one of the academics who had raised concerns. In his visitorial report into the Swansea affair, former High Court judge Sir Michael Davies described any sort of gag or restriction upon an academic as "anathema and . . . virtually impossible to police or enforce". The Nolan committee adds that if such clauses are used, they should expressly remind staff that legitimate concerns about malpractice can be raised with an appropriate external body.

Whistleblowing tends to follow frustration with internal grievance procedures. It is in an organisation's interests, therefore, to create a climate where staff concerns are welcomed and processed promptly and fairly. Employees' fear of reprisal from immediate bosses suggests the need for confidential internal reporting systems, as recommended by Public Concern at Work and adopted by the Nolan committee.

Nolan recommends that institutions should state clearly that malpractice is taken seriously in the organisation. It urges that institutions should indicate the sort of matters regarded as malpractice and advise how concerns may be raised externally. It also proposes independent review.

Legislation to protect whistleblowers is needed. Under current law, whistleblowers may be disciplined, dismissed or sued for breach of fidelity or trust and confidence, with only patchy and unreliable public interest exceptions.

Last month, a Bill offering novel and substantial protection to whistleblowers was talked out of Parliament in the face of strong Government opposition. The Public Interest Disclosure Bill aimed to protect individuals from reprisal for disclosing significant misconduct or malpractice.

Higher education might consider codes of practice on free expression of staff concerns produced by professional bodies, such as the British Association of Social Workers, and public sector bodies. For instance, the NHS management executive guidance for staff on relations with the public and media states that staff have the right and duty to raise with their employer health service concerns. The true test of protection will remain whether employees feel safe, particularly through legal protection, from reprisal for any justifiable public interest disclosure.

The controversy over academic standards, funding pressures, and the commitment to safeguard income and reputations may chill any institutional support for whistleblowing. It is precisely in these circumstances, however, that disclosure about malpractice in higher education becomes especially important in the public interest.

Dermot Feenan is an independent scholar.

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