Month: August 2019

In a bid to transform and improve the whistleblowing and speak up culture of charities, Protect is reaching out to offer its help and expertise in a pilot it hopes will transform the sector.

In June, Protect partnered with the Charity Commission to launch a six-month advice line for whistleblowers working in the charity sector, and calls have risen by 16% this year. If a charity worker or volunteer has concerns over wrongdoing and wants independent advice on how to raise it effectively, they can call Protect.

Now Protect wants to engage charities with its whistleblowing 360 Benchmark tool – which tests the whistleblowing culture of an organisation – in a bid to offer further support and is offering the newly developed 360 Benchmark to charities with 50 plus staff on a ‘first come, first served basis’.

Chief Executive Francesca West said, “Following the very well documented Oxfam scandal, we recognise there is much to be done to support the Third Sector. We are already working with the Charity Commission operating a pilot advice line for charity workers. We now want to offer our 360 Benchmark as a pilot to a cohort of charities to help them understand where they may be falling short on best whistleblowing or speak up practice.”

Earlier this year, an Oxfam whistleblower resigned claiming Oxfam were still failing to deal with harassment and bullying at its head office despite pledging zero-tolerance to misconduct following the Haiti scandal.

The whistleblower told The Times she did not believe its public claims it was reforming and in her resignation letter said, “I am very sorry to be having to leave Oxfam but I can no longer work in this environment. [We are] telling the public that we are doing all we can to change the culture here and protect people . . . It feels to me like that simply is not true.”

Charities are being invited to a roundtable taking place in October where they will be able to sign up to the pilot which will be open to 30-40 charities with 50-plus employees. Upon completion their results will be analysed and discussed anonymously.

If you are interested in taking part, please contact Lou@protect-advice.org.uk before Friday 19 September.

An interesting recent case at the Employment Tribunal (Bilsbrough v Berry Marketing Ltd) looked at victimising of a potential whistleblower.

In this case, Mr Bilsbrough, a client service executive, had been researching how to blow the whistle to the Information Commissioner, and was suspended. A strict interpretation of the law might suggest he was not yet a whistleblower as he hadn’t yet blown the whistle (made a disclosure) and therefore he was not protected. However, the tribunal found that Mr Bilsbrough was suspended for considering how to blow the whistle and this was not justified. The Tribunal held that researching how to whistleblow was an integral part of making a disclosure, and Mr Bilsbrough had suffered unlawful detriment because the employer believed that he had considered making a protected disclosure.

Although this case doesn’t create a precedent, it shows the Tribunal’s willingness to consider wider issues, including human rights to freedom of expression. The Tribunal noted that if a person cannot consider making a disclosure without the risk of sanction, even if they then decide not to make a disclosure, that would have a “chilling effect”. They held that whistleblowing law should be read so as to be compatible with human rights.

The judgment said: ‘In a case such as this, if an employee does not know how to make a disclosure to a regulator, he or she will have no option but to research how to do so.’ It added: ‘If an employee is behaving responsibly in preparing to make a disclosure…then the dismissal of such a person or subjecting them to a detriment because of that research would be an interference with that employee’s right to freedom of expression.’

Protect would like to see the protections for whistleblowers broadened to include potential whistleblowers, as in this case, as well as perceived whistleblowers (those who are wrongly assumed to have blown the whistle).  We’re calling for a wider review of the Public Interest Disclosure Act, (PIDA) to reflect the changes in the workplace in the last 20 years since its introduction, and to make sure the widest possible group of individuals are protected when they try to speak up to stop harm.

Read the case in full

New guidance by the Law Society on NDAs – Non-disclosure agreements – has recommended Protect as an advice centre for whistleblowers as ‘whistleblowing law is complicated’.

NDAs, sometimes called a confidentiality clause, or gagging clause, allows the employer and worker to resolve a dispute confidentially without going to a tribunal or court.  An individual may also be asked to sign a confidentiality agreement before starting a project, to stop business secrets and sensitive information from becoming public.

NDAs have hit the headlines in recent months over the Harvey Weinstein and Philip Green scandals and allegations of covering up bullying, sexual harassment and discrimination.

The Law Society guidance, ‘NDAs and confidentiality agreements – what you need to know as a worker’ makes clear an NDA cannot be used to stop whistleblowing in the public interest. The guidance also recognises ‘whistleblowing law is complicated’ so whistleblowers expert advice from solicitors, or Protect.

Protect Chief Executive, Francesca West said, “We are pleased to be promoted by the Law Society who recognise our work supporting whistleblowers with expert legal advice. Whistleblowing legislation is complex, as are many of the cases we handle. The advice we provide to nearly 3,000 individuals each year is unique as it is legally privileged and is focussed on supporting the individual to speak up and stop harm.”

Protect have spoken out against the improper use of NDAs, and invited to give evidence to both the Women & Equalities Select Committee and the Government’s consultation on NDAs where we stated a need for clearer, plainer, English surrounding NDAs, a stronger regulatory framework to tackle toxic workplace culture and a requirement for lawyers to explain the limits of NDAs on future disclosures.

In July, the government announced it would open a consultation into proposed legislation.