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Please note, our advice line will be closed from midday on Wednesday April 3 until Friday April 5 as we move offices.

Moving day is 4 April to new sustainable offices at The Green House, Cambridge Heath Road, London E2 9DA.

Protect’s new home is a shared space for charities and not-for-profit organisations in London. 

Our website, telephone numbers (including freephones you may have) and bank details are not changing.

The advice line will re-open on Friday April 5.


The APPG for Whistleblowing was set up on 10 July 2018 after a campaign by WhistleblowersUK to expose the positive benefits of making speaking up safe. We captured the imagination and support of our Politicians using cases that we had worked on to demonstrate not only the value to the economy but comprehensive value of this source of intelligence to society. Whistleblowers, or people who speak up, are valuable human capital. By engaging the imagination and the possibilities of reimagining the role of the whistleblower – as a vital element of a transparent society – we have been able to attract and engage a wide and influential cross party group of politicians. These Politicians have recognised that not only the UK but the world need to take advantage of this resource. 

The APPG has demonstrated its commitment to its principles by putting whistleblowers not only at the top of the agenda but at the heart of the APPG by appointing WhistleblowersUK as its secretariat. An organisation led by and largely run by whistleblowers across many sectors. The aim of the APPG is to develop world class, global standard whistleblowing legislation, because protection should not start and end at our borders and to succeed we all need universal cooperation.

The APPG has an ambitious work plan where phase one is coming to a close and will result in the publication of our first report in June. The data will represent the voice of the whistleblower as it originates from the call to evidence comprising the hundreds of whistleblowers who participated through our survey, group sessions, emails, social media and 1:1’s. The most prolific sector is health and social care comprising nearly 50% of the responses. The most widely expressed concerns are that the legislation does not work and that too many people are excluded leaving many people not only vulnerable but with no obvious place to seek protection. The biggest stated barrier to whistleblowing is fear of retaliation. The greatest concern is that the issue which led to the whistleblowing is not addressed. These issues are echoed across all sectors. The report will reveal all…

Not distracted by Brexit or the drafting of the report, we have already embarked upon the call to evidence for phase two of our report. The APPG are meeting regulators, professional bodies and trade unions in a series of calls to evidence. So far we are both impressed and challenged by the evidence that we are gathering. Every session, as with the whistleblowers is held in private and with those speaking guaranteed confidentiality. In setting up the sessions in this way we are able to ask and expect answers to challenging questions, and demonstrate the power of a learning not blaming environment. This report will be published in January 2020.

Phase three will be a call to evidence for Employers, Academics, the legal profession and judiciary and MP’s. This report is planned to be published in June 2020.

Take the survey

If anyone would like to assist or give evidence we welcome their support. Please support the work that we are doing via our secretariat www.wbuk.org

By CEO of WBUK Georgina Halford-Hall


Zelda Perkins, former assistant to Harvey Weinstein, discussed non-disclosure agreements in a conversation with equality barrister Karon Monaghan QC at UCL recently. Protect adviser Dugald Johnson went along to hear the discussion.

Zelda began by recounting how, after persistent sexual harassment, she and a colleague resigned from Miramax, Weinstein’s film company. She described that the “journey of real abuse” began in the bewildering legal process that followed.

On finding a lawyer, she and her colleague were promptly told that they had no real option but to reach a settlement agreement with Weinstein. If they pursued a legal claim it would simply be their word against his. Following gruelling negotiations with Weinstein’s lawyers, Zelda was cajoled into an opaque agreement with draconian confidentiality clauses. Not only was she not allowed to discuss the harassment or existence of the agreement with anyone else, if called to give evidence in a criminal trial, she was to use her “best endeavours” not to disclose information about the harassment. The lawyers did not even let her keep a copy of the agreement.

Zelda’s experience has led her to take the view that NDAs should be banned in cases of workplace harassment and discrimination. She recognises that, at present, a confidentiality clause benefits the victim too. It gives them some reassurance that the allegations will not be used against them in future, such as in finding new employment. But Zelda maintains that the culture around sexual harassment will not change until confidentiality is an option for neither  the perpetrator nor the victim. As long as the instinct of lawyers is routinely to agree confidentiality, perpetrators will continue to escape without scrutiny and victims will feel they have to hush it up for the sake of their career.

An outright ban would pose some problems for victims, at least initially. One likely effect is that employers will be less inclined to agree settlements rather than push the dispute to tribunal. Confidentiality is an important benefit of agreeing a settlement out of court. This effect would be likely aggravated by poor access to justice: employers are able to exploit the fact that many employees do not have the means to bring a claim against them. Both Zelda and Karon were clear that improving access to justice and to mediation must be a priority. The unavailability of confidentiality may also deter victims from coming forward.

Nonetheless, Zelda makes a compelling case for banning NDAs in these circumstances. One of the main issues with confidentiality clauses is that they fragment women’s experiences of a widespread social phenomenon, namely, workplace sexual harassment. Rather than create the conditions for women to share their experiences with each other, build solidarity and take collection action, the law individuates victims and facilitates their being silenced.

One contributor to the Q&A event at UCL, noted that abuse of NDAs highlights a conflict between criminal justice and contract law. While criminal justice depends on the gathering and presentation of evidence, contract law allows parties to agree obligations that prevent that evidence coming to light. That endemic workplace sexual harassment has gone unchallenged for so many years, only highlights the problems posed by employment law rooted in principles of contractual freedom. While non-disclosure agreements are routine in commercial contexts, are they so appropriate in cases of workplace harassment and discrimination, where there are generally significant power imbalances?

It is clear that lawyers must take more responsibility for equipping victims with full knowledge of their rights and options. Protect has called for clearer wording in the whistleblowing legislation and more robust duties to advise employees fully. Regulators must also take stronger action against lawyers who act unethically. But what Zelda emphasises most is the need to change stubborn instincts – of lawyers, first and foremost, but also of society at large – to shroud these issues in secrecy.

Protect welcomes the Kark Review recommendations to give more teeth to the Fit and Proper Persons Test (FPPT) –  which is in place to ensure senior staff responsible for quality and safety of care are fit for their roles.

Led by Tom Kark QC, the review, commissioned by the government, looks at how effective the Fit and Proper Persons Requirement is in preventing unsuitable staff from being redeployed or re-employed in the NHS, clinical commissioning groups, and independent healthcare and adult social care sectors.

The Kark Review recommendations include:

  • All directors should meet certain professional standards to sit on an NHS board
  • A central database should be created that holds key information about qualifications and employment history
  • References should be a mandatory requirement for director posts
  • The FPPT should apply also to commissioners and arms-length bodies
  • A power should be created to disbar directors for serious misconduct
  • Further work should be done to assess the Test in social care contexts

Recent incidents in a number of NHS trusts have made it clear that ensuring effective management must be a priority. Directors, particularly when it comes to whistleblowing, must take the lead in instilling an open and supportive culture in which staff feel encouraged to speak up about concerns.

The fit and proper person regulation (FPPR) requirements came into force for all NHS trusts and foundation trusts in November 2014 following a number of scandals in the sector, to promote effective management. The Test requires NHS Trusts to assess newly appointed Directors against a number of criteria. A Trust must provide information to the Care Quality Commission (CQC) and declare that the individual meets the criteria. At present, individuals who do not pass the FPPT are listed on a register which places restrictions on their work.

The report discusses the relatively low rate of recorded whistleblowing in the NHS for a sector of its size and refers to a number of employment tribunal judgments which highlight a tendency in some NHS trusts to conceal concerns. The report remarks that the NHS’s understanding of ‘Speaking Up’ covers a broader range of disclosures than those which earn protection under whistleblowing legislation. Protect takes the view that workers and their managers need clear information and understanding of whistleblowing protection. For example, disclosures about bullying at work – though an important part of the speak-up landscape – do not necessarily qualify for legal protection against dismissal or detriment.

We share the concern expressed by Kark that some standard aspects of settlement agreements often obstruct transparency about a director’s past conduct. Confidentiality clauses and bare-bones agreed references can make it difficult for a prospective employer to make an informed assessment of a candidate because they prevent sharing of information between NHS bodies about previous misconduct, such as mishandling of whistleblowing.

In the context of those challenges, the report recommends that references be required to contain certain mandatory information. This is to be informed by a new central database of key information about all NHS directors, possibly housed within NHS Improvement. This would go some way in addressing the obstacles posed by settlement agreements.

In the context of Kark’s comments on whistleblowing in the NHS, it is encouraging that the NHS standard contract for 2019/20 includes an express commitment that nothing in any contract, such as a settlement agreement, will prevent a worker from raising concerns about quality or safety of care provided by their employer. This sits alongside provision that nothing will prevent disclosures protected by the Employment Rights Act 1996.

A key report recommendation is that certain behaviours amounting to “serious misconduct” should lead to temporary or permanent disbarment from a director post. These powers go beyond the current possible actions of the CQC if a director fails the test, which extend only to refusing the director’s appointment or working with a Trust to improve governance. This sort of enforcement power is crucial in order to make the FPPT a more meaningful endeavour when serious misconduct comes to light.

Protect welcomes the recommendation that suppression of whistleblowing or victimisation of a whistleblower by any director who falls under the regulation of the FPPT be considered “serious misconduct”. This is welcome recognition of the central importance of whistleblowers in ensuring high standards in the NHS.

Read the Kark Review in full

By Protect adviser Dugald Johnson


Whistleblowers exposing illegal conduct or abuses of law in their workplace will soon have nothing to fear when revealing the truth, thanks to a new EU Directive to protect whistleblowers from retaliation.

The EU law, once implemented, will see protection for whistleblowers in the public and private sector, including civil servants, the self-employed, shareholders and people belonging to management, administrative or supervisory bodies, volunteers and paid or unpaid trainees, people working for contractors, subcontractors and suppliers, people uncovering breaches during a recruitment process and finally, ex-workers. Colleagues or relatives affected by retaliation, will also be protected as well as ‘neutral people’ who provide confidential advice to whistleblowers.

The Directive, once made law, specifically protects people reporting on breaches of law or abusing the spirit of EU laws in a wide range of important areas such as public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems, protection of the financial interests of the Union, breaches of internal market rules, including competition and State aid rules or tax avoidance issues.

The agreement comes almost two years after the Greens/European Free Alliance (EFA) Group in the European Parliament drafted its own model EU Directive to protect whistleblowers across the European Union, but its not been easy. Several European governments wanted to make the reporting process as strict as possible so that whistleblowers would only be protected if they reported internally first, unless they could fulfil one of the unclear exceptions that would justify reporting to regulators.

Who has to set up channels for whistleblowers to report?
Companies with more than 50 employees are obliged to set up channels and procedures for whistleblowers to report safely. Public bodies are also obliged to set up channels, but exceptions can be provided for municipalities with less than 10,000 inhabitants or less than 50 employees. Small municipalities can also pool resources and share channels or procedures for reporting.

The next step is for EU governments and Members of the European Parliament to rubber-stamp the agreement within the next few weeks, with Parliament adopting the final text in April.

For more information on the European Commission’s original proposal, including its strength and weaknesses, read the Greens/EFA briefing published at the time.

For a summary of the Parliament’s position on the text, visit: https://www.greens-efa.eu/en/article/news/european-parliament-pushes-for-strong-protection-for-whistleblowers-in-landmark-vote/

For a comparative analysis of the Council’s text, see: https://www.greens-efa.eu/en/article/news/whistleblower-protection-around-the-corner-as-eu-governments-agree-on-their-position/

 


In response to the #Metoo movement and scandals like the Presidents Club the government are consulting on limiting the use of confidentiality clauses  – also known as non-disclosure agreements  in sexual and racial harassment cases.   

The Government’s announcement to Parliament on Monday (March 4) made it clear that non-disclosure agreements (NDAs) have their legitimate uses, for example an NDA is standard practice when an employee and employer settle an employment dispute.   It is also legitimate for businesses to want to protect trade secrets.  Nevertheless these agreements cannot be used to shield wrongdoing: this is against the law.

The whistleblowing law- the Public Interest Disclosure Act- ‘trumps’ any part of an NDA which tries to block public interest information from being concealed.  In effect, unlawful or criminal conduct cannot be hidden by an NDA.

But the problem is, not many people are aware of this.  A worrying minority of employers have banked on this lack of knowledge and nonetheless abused such agreements by putting in draconian confidentiality clauses that are unlikely to be enforced in court, hoping that a whistleblower or victim will be in the dark.

This lack of legal know how and a belief that they cannot escalate their concerns prevents the whistleblower going to the Police or the press.  This seems to have been the case of both the Presidents Club and the treatment of Zelda Perkins in relation to allegations of rape and sexual assault against Harvey Weinstein.

The Government announced the following key proposals that they believe will create ‘a more level playing field between workers and employers, providing more understanding over rights and legal responsibilities’:

  • Legislating that confidentiality clauses cannot prevent any disclosure to the police
  • Requiring a clear description of the limits of confidentiality provisions within a written statement of employment particulars (in the case of confidentiality clauses in employment contracts) or within settlement agreements
  • Extending the law that means a worker agreeing to a settlement agreement receives independent advice, by specifying that the advice must cover the limits of any confidentiality clauses in the settlement agreement.

 

Anything that clarifies victim and whistleblowers rights is a good thing – but the response outside government so far has been a chorus of “this doesn’t go far enough” and described by one political pundit as a “public information campaign”.   Protect’s view is the government proposals will better inform workers of their existing rights but it doesn’t go far to alter the system itself.  It doesn’t clarify the tricky issue of when harassment or discrimination can be disclosed, and it doesn’t address the individualised approach to dealing with workplace discrimination.  Protect believes these proposals are a good starting point, but far from the final conclusion.

The #Metoo movement has been founded on individuals speaking out and finding they are not alone in voicing their concerns.  This is the dilemma facing the whistleblower – how do they know their concern is a one-off incident, or indicative of a wider problem.  All the time an individual can be “silenced” through a legitimate NDA, the problem remains.

Some may suggest that discrimination (of any kind – not just sexism) meets the public interest test.  At present, what is the public interest is a matter for tribunals to decide.  A single case of discrimination may not meet the “public interest” test for disclosure– but the rules are not hard and fast – a tribunal needs to ask: what is the nature of the wrongdoing, the interests affected, the identity of the wrongdoer, the numbers involved?  Too many uncertainties and the individual is effectively silenced.  Worse, the employee risks the employer pursuing them through the courts for a breach of confidence if they speak up (to which there is little comfort in a response that the remedy lies in the employment tribunal).  Some commentators have suggested that there should be a public interest defence in the courts to a breach of confidence claim – but the uncertainties about what is the public interest remain.

Suppose the government clarified when it is in the public interest to report discrimination.  The next question is to whom?  Clearly the police are not the appropriate body to take action over an unlawful breach of an employment contract.  Even if they welcome the intelligence, we need to manage expectations that allowing people to report to the police will result in action.  Is it time for regulators to step up?  Some like the FCA recognize that discrimination may be relevant in their assessment of fit and proper persons.  The Kark review in the NHS also examines what standards should be expected of senior managers.  But many industries are unregulated and, as a result, there is no external body to “join the dots” and identify wider workplace concerns. As the Equality and Human Rights Commission prepares to join the list of prescribed regulators, is it time for them to take on this role?

From Protect’s point of view we hope through the public consultation to persuade the Government to widen reforms of all whistleblowing situations and add the following to their announced proposals:

  • Section 43J should be amended with more robust language. We suggest the following wording: “no agreement made before, during or after employment, between a worker and an employer may preclude a worker from making a protected disclosure.”
  • We agree with the consultation proposal that there should be a requirement on lawyers when advising on settlement agreements (see S203 (3) ERA) to explain the meaning and effect of 43J PIDA (and any additional anti-gagging provisions brought forward by the government).
  • To publicise and underpin fresh guidance there should be a public awareness campaign around workers’ rights under PIDA as well as anti-discrimination law in the Equality Act.
  • Widening the ban: While we do not support the outright ban of NDAs, we do not think it would ever be appropriate to use an NDA to prevent the disclosure of an unlawful act that has not yet taken place. We would also like to ensure that other clauses in settlement agreements (such as warranties or non-disparagement clauses) are not used to circumvent the anti-gagging provisions in PIDA (or other soon to be proposed anti-gagging provisions).
  • Give a greater role to Equality and Human Rights Commission (EHRC) in enforcement of harassment and discrimination: we are concerned the current proposals will not cover situations where sexual and racial harassment/discrimination falls below the level of criminal activity, meaning the police would not be able to investigate. In this situation a whistleblower would have the right to raise their concerns, even with an NDA in place but with no external body or regulator that could take the concerns.
  • Stronger duties on employers: we back the Women’s and Equalities Select Committee’s proposals to create a positive legal duty on employers to prevent harassment with a breach of this duty enforced by the Equality and Human Rights Commission. This, combined with the Government proposals to ban agreements that prevent disclosures being made to the police, could really rebalance the power between workers and employers.

Five well-known European whistleblowers wrote directly to EU Vice President Frans Timmerman and Commissioner Věra Jourová calling on them to ensure a new law to protect whistleblowers across all 28 Member States removes any doubt that whistleblowers are protected for going directly to the competent authorities.

The whistleblowers – Antoine Deltour (multinational tax avoidance schemes in Luxembourg,LuxLeaks)Andrea Franzoso (high value fraud committed by President of company, Italy) Raphaël Halet (multinational tax avoidance schemes in Luxembourg, LuxLeaks) Brigitte Heinisch (chronic understaffing causing severe ill-treatment of elderly people in care, Germany) Ana Garrido Ramos (corrupt practices in municipal Town Hall, leading to Gürtel scandal, Spain – also sent their letter to the European Council representing state parties in the negotiations on a new EU law.

The Council’s position not only rejects decades-long, hard won protections for whistleblowers in Europe (see Ireland for instance) but seems determined to turn a law that should be designed to ensure the free flow of information for the responsible exercise of institutional authority, into an information control system to protect the reputation of employers.

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