17 May 2013

By Sarah Glenister, IER staff

A report from whistleblowing charity Public Concern at Work (PCAW) has highlighted how misguided the government's Enterprise and Regulatory Reform Act (ERRA) really is.

One of the many aspects of employment law undermined in the Coalition's latest deregulatory Bill was the Public Interest Disclosure Act, which aims to provide protection to whistleblowers and so encourage them to take a stand about issues that affect the general public.

But this legal protection is already not strong enough. PCAW interviewed 1,000 whistleblowers and found that 15% were dismissed after reporting wrongdoings in their organisation. Senior staff who blew the whistle were even more likely to be fired than other employees, it was found, but junior workers are more likely to simply be ignored.

Even those who manage to hold on to their jobs do not get off lightly. Nearly 1 in 5 whistleblowers (19%) are subject to a formal disciplinary or demotion after raising concerns in the workplace, which is likely a ploy by employers to scare their staff into submission and discourage them from taking their claims further.

The fact that employers do not take the concerns of their workers seriously enough when it comes to institutional wrongdoing is evident. A huge 74% of whistleblowers say their organisations did nothing after being told of issues in the workplace, and 60% received no response at all from management after raising their concerns.

The PCAW report, which was compiled in conjunction with the University of Greenwich Work and Employment Relations Unit, after whistleblowers were dismissed because they raised issues that would later become very public scandal and national disasters, including at Mid Staffs Hospital and HBOS.

And now the lot of whistleblowers is to get worse. Last month, the government introduced new rules into the PIDA through the ERRA, stating that an whistleblower's concern must be proved to be in the public's interest before employees can claim legal protection. This can only further discourage worried employees who are afraid that taking a stand against powerful companies will lead to the loss of their livelihood.

Cathy James, CEO of PCAW, said: "Media attention on whistleblowing makes for contradictory reading: ministers and employers say whistleblowing is vital for an open and transparent workplace culture, but ask the whistleblowers and the story is starkly different: they are gagged in the NHS, arrested in our police forces and blacklisted in many industries.

"The combination of the findings in our report demonstrate why speaking up in the workplace may seem futile or dangerous to many individuals," Ms James went on.

“Too many workers still suffer reprisal which will not only impact negatively on the whistleblower, but will deter others from speaking up and allow a culture of silence to pervade. We must learn from past mistakes and make sure that whistleblowing protects individuals, organisations and society as a whole.”

It is difficult to understand why, considering the evidence available on whistleblowing, the Coalition has driven the law in the opposite direction to which it needs to go. While the Enterprise and Regulatory Reform Bill was being debated, ministers claimed making PIDA more exclusive would dissuade employees falsely claiming as a whistleblower when they have not in fact raised a concern in the public's interest, but rather for private reasons. However, the number of whistleblowing cases going to tribunal that were found to be weak or vexatious in this manner was miniscule. PCAW noted, in fact, that only 40 claims made in 2009/10 were misused by workers making a claim about their private employment contract.

The action of the Coalition to go ahead with its change to legislation despite the strength of the evidence against it makes it difficult not to look on the ERRA without a heavy dose of cynicism, particularly as a large part of the changes made through this Act are also evidence-weak and appear to be ideologically driven.

It boggles the mind that the Coalition may prioritise private profits over public safety, but with large chunks of the public sector being sold off to private contractors there are certainly reasons to worry that potential whistleblowers will be afraid to speak out should any wrongdoing occur during the transition of public services from being for-the-people to for-profit.

A recent case chillingly illustrates the point with respect to healthcare. Harmoni, the UK's latest private provider of out-of-hours GP care has been shown to be severely lacking in the provisions it makes to adequately look after Britain's unwell. A whistleblower came forward to tell Unison the organisation had at times left only one nurse on call to cover 250,000 patients over a 150-mile radius, the Morning Star reported. It is also accused of flying in foreign doctors to plug rota gaps, leaving terminally ill cancer patients to suffer for eight hours before giving them pain relief, and manipulating its figures to cover up what the whistleblower described as a "dereliction of duty". The whistleblower revealed that the company's practices were driven by a desire to increase its profit margin.

Unison warned the Morning Star that Harmoni's behaviour may be a worrying sign of "the shape of things to come" under the privatisation of the NHS and other public services.

With PIDA also being weakened and workers terrified of losing their jobs in today's economic climate, the Institute of Employment Rights is also deeply concerned that corner-cutting to maximise profits will become the norm if this Tory-led government continue to get their way.