Raising concerns in Local Government

There are many types of concerns that can arise while working at a local authority, and some examples of common concerns have been set out above.

However, there is a distinction between legal wrongdoing and ethical wrongdoing.

For whistleblowing law to apply, you must be able to show that you reasonably believe the issue falls into one of the six categories of wrongdoing set out in the law: criminal offence, failure to comply with a legal obligation, miscarriage of justice, health and safety risks, environment damage, and a cover up of any of the 5 other wrongdoings. Concerns about poor or unethical practice may not fall into these categories.

If your concern does not fall into one of the categories of wrongdoing, your concern may still be worth raising. Internal whistleblowing policies may still encourage you to raise concerns and your local government may wish to hear about concerns which fall outside the scope of whistleblowing law. However, you should be mindful that whistleblowing rights might not apply, and carefully consider how to limit the risk of facing retaliation for raising your concerns.

It may be worth contacting your union, or one of the relevant regulators listed below, to find out whether your concern constitutes a legal wrongdoing (and would likely fall into one of the six categories of wrongdoing), or whether your concern is more of an ethical issue.

For a disclosure to qualify for protection under whistleblowing law, the information that you provide must fall within one or more of the six categories of malpractice or failure that the law sets out. The 6 categories of wrongdoing set out in the law are the following: criminal offence, failure to comply with a legal obligation, miscarriage of justice, health and safety risks, environment damage, and a cover up of any of the 5 other wrongdoings.

In order for a disclosure about the waste of public to qualify for protection, specific information as to why the waste of public funds falls into one of the categories of wrongdoing must be provided in order to qualify for whistleblowing protection.

For example, if a local authority uses ringfenced funding for another (non-designated) purpose, they may be in breach of the contract with the funding agency or government department and in turn, in breach of a legal obligation.

However, if you disagree over whether a particular contract represents good value, but others think it does, this may be more of a subjective belief – this will be less likely to fall into a relevant category of wrongdoing.

Concerns about the waste of public funds that is not likely to fall into one of the six categories of wrongdoing can still be raised – but bear in the mind the risks of raising concerns without whistleblowing protection.

In order for a concern to be protected under whistleblowing law, the concern must be in the public interest.

The public interest requirement is the defining feature of whistleblowing law.  Public interest separates out concerns about someone’s ‘private’ employment rights from ‘public’ concerns that have wider impact and are more likely to be covered by whistleblowing protection.

Raising concerns about wrongdoing within a local authority, whose role is to provide essential services, represent local communities, and manage local issues, may not automatically in the public interest – despite the common belief that any wrongdoing within a public organisation has a knock-on negative effect on the public.

The Chesterton Test (which comes from the case of Chesterton v Nurmohamed [2017] EWCA Civ 979) gives us some factors to consider when trying to decide if the concern is in the public interest.

• The numbers in the group whose interests the disclosure served.
• The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.
• The nature of the alleged wrongdoing disclosed.
• The identity of the alleged wrongdoer.

How these factors are applied will depend on the facts of the case. There is no ‘deciding’ or more important factor to consider when determining the public interest.

As a general rule, if you act as a witness to wrongdoing, it is more likely that you will satisfy the public interest test. This means that the concerns impact others rather than just yourself. For example, if a local council fails to manage or remove asbestos from a council-owned accommodation, this is likely to be in the public interest due to the nature of the wrongdoing and the nature of the interests affected, despite the number of individuals directly affected by the wrongdoing potentially being relatively small.

If the concern is about your own treatment at work only, then this is likely more of a ‘private’ concern about your own contract of employment and it will be difficult to satisfy the public interest test. For example, if you are facing issues with your line manager, which are only affecting you, it may difficult to argue that this is in the public interest, even if your line manager is employed by a public body like a local authority.

Sometimes it is necessary to go to an external body to raise your concerns. This may be because:

• You believe your employer won’t appropriately investigate the concerns;
• You believe you may be victimised for raising concerns;
• You’ve already raised concerns internally and nothing has been done.

In whistleblowing law, some bodies are explicitly prescribed as regulators that you can contact. This means that it will usually be more straightforward to come under whistleblowing protection in reporting your concerns to them, as long as other legal tests are met. Whistleblowing law can still apply to disclosures made to other external bodies, but the legal tests involved are different. You can read more about prescribed persons and ‘wider disclosures’ here, or contact our free legal Advice line for more information.

Remember to emphasise how the concerns you are raising are in the public interest. A regulator will want to know how the issue you are reporting affects the workforce and/or beneficiaries. For example, some of the questions that might be worth considering are:  what impact does the wrongdoing have on the people the local authority helps, its assets, services, staff or reputation?

Disclosures relating to local authorities can be made to the external auditor of the relevant authority or the Comptroller and Auditor General.

To find out who your authority’s external auditor is, you can look at the ’s website, the company now responsible for appointing auditors to local government. It should be noted that PSAA is not a prescribed person under the Public Interest Disclosure Act and their role in this is only to signpost individuals to the external auditor appointed of the local authority in question. You can use their website to find the contact details of the local authority’s external auditor.

To make a disclosure to the Comptroller and Auditor General, please contact the National Audit Office. They can be contacted about the proper conduct of public business, value for money, fraud and corruption in relation to the provision of public services. However, please note that they do not generally investigate individual concerns.

For the full list of prescribed people and bodies, see the Government list.

With some regulators it may be possible to have hypothetical conversations about your concerns, to gain understanding about whether the concerns constitute legal or regulatory wrongdoing and fall within their remit.

You can also be protected under whistleblowing law if you go to an organisation which is named in your employer’s whistleblowing policy.

If you are raising your concerns to someone other than your employer or a prescribed regulator, this is called making a wider disclosure. You should be very careful about this, as you will have to satisfy a much stricter legal test in order to get whistleblowing protection. If you are reporting to the media, it is worth remembering you will often have very little control on how your story will be reported and may face backlash from members of the public. You can find more information here. We recommend you contact us for further advice.