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Protect Chief Executive Francesca West has responded to the Panorama programme on anti-Semitism in the Labour party and the use of NDAs to gag whistleblowers, which aired this week.

The programme featured eight whistleblowers who spoke of feeling undermined by senior Labour bosses in their efforts to speak up and tackle anti-semitism. They claim there was consistent interference in complaints they were trying to deal with.

Four of the whistleblowers, including former Labour general secretary Iain McNicol, who left his post last year, have broken non-disclosure agreements (NDAs) to come forward.

Former disputes officer, Louise Withers Green,  signed off with depression and anxiety, signed an NDA in return for not having to work her notice. She told the BBC she broke the NDA because she would not “be able to live with myself unless I speak up about the horrendous things that I know have been happening”.

Protect’s Chief Executive Francesca West said, “In March last year the Solicitors Regulatory Authority (SRA) issued a warning to all law firms in the overuse of NDAs. They also warned against the use of an NDA to conceal wrongdoing, harassment or misconduct towards others.

“It is hard to see why these NDAs were used against these Labour Party employees who have been appallingly treated for just wanting to do the right thing and correctly do their job. The NDA we have seen does not take account of the rights all workers have under the whistleblowing legislation and is a terrible indictment of the culture in the Party. We know it is an incredibly difficult decision for a person to make public their concerns, and a number of these individuals have clearly flagged the incredible toll this has taken on their own mental health. Such individuals are worthy of our praise and support and we are deeply concerned about the response from the Labour Party.”

Protect have been very vocal on our views that NDAs need to have clearer legislation as we believe they currently prevent whistleblowers from speaking out over gagging fears and threats of legal costs. Protect gave evidence to the Women & Equalities Select Cttee into NDAs as well as the Government’s Consultation into NDAs.

 

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A backbench debate led by MP Norman Lamb took place in the House of Commons (3 July 2019) to discuss whistleblowing, the current legal landscape and the urgent need for reform of the current whistleblowing legislation.  

Protect attended with Dr Chris Day, the NHS whistleblower whose case was heralded by MPs in the debate as an illustration of the need for reform. Read  more about Dr Day’s case here.

The debate was called by Rt. Hon. Norman Lamb MP and Stephen Kerr MP, who are both co-chairs of the APPG (All Party Parliamentary Group) on whistleblowing. Protect provided an in-depth briefing for MPs ahead of the debate that captured the key legal issues and why we are urging the UK Government to adopt elements of the EU Whistleblowing Directive, which will be introduced by 2021 by EU member state countries.

There was real cross party support and agreement around most topics including:

– imbalance of power:If the whistleblower is still employed then they are at risk of losing their job. If the whistleblower is no longer employed, they face the prospect of a tribunal case against an organisation which almost certainly has greater funds to pay for prestigious legal support; whereas the whistleblower who is unemployed simply cannot afford to risk spending any sum of money from a budget which they may have to live off for the foreseeable future. In addition, in the current legal procedure, the employee must prove that the reason they suffered was due to whistleblowing, rather than the employer showing that there were other reasons for the whistleblowers treatment.

– Regulators need to be held to account: Throughout the debate, reference was made to several whistleblowers who had been badly let down by their regulators. Often, this is due to confidentiality being breached, which Protect know is one of the worst  outcomes whistleblowers face. There is no unification of standards within regulation, and little ability for an individual to complain about bad treatment by a regulator – as the law is currently silent on the activity of regulators. An oversight body, an Office for the Whistleblower, was voiced as one mechanism which could address this gap.

– Victimization of whistleblowers cannot be tolerated: Kevin Hollinrake MP quoted an individual who said “If I knew then what I know, I would never have raised concerns.” MPs clearly felt that it was the role of regulators to sanction those who victimize whistleblowers, yet very few do this.

– The government must ensure that protection for whistleblowers in the UK is maintained at the highest possible standard: learning from other international systems; such as Australia, the EU and Ireland is vital in order for the UK to remain ‘the best place in the world to do business’.  The UK must have a competitive edge, ensuring the intelligence provided by whistleblowers is maximised. This may mean expanding the scope of the law, to cover facilitators of whistleblowing, and those in appointed or voluntary positions, rather than only in employment.

Read the debate in full from Hansard

By Protect Adviser Laura Fatah

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I am a student from the US, studying Psychology and Law, Societies & Justice, who has the amazing opportunity of living and working in the UK and joining the team at Protect for the next seven weeks as an intern. I had a good idea of the work Protect did, but it was not until my first few days in the office that I got to learn about the fascinating and brave stories about whistleblowers and Protect’s noble dedication to advising both whistleblowers and businesses to stop harm and wrongdoing in the workplace.

During my first week, I became more familiar with what the staff at Protect do, which includes their focuses on advocating for whistleblowers through their advice line, as well as through campaigning for changes in public policy for the rights of whistleblowers. 

On my second day, I had the great privilege of joining three of my co-workers, as well as NHS whistleblower Chris Day, at Parliament to watch a debate (July 3) in the House of Commons on whistleblowing. Being able to leave the office setting, especially on only my second day, and attend a government debate on my internship’s exact area of expertise was quite exciting, and exhibited how important the work that the staff at Protect is doing. In addition, meeting Chris Day, a junior doctor who has experienced extreme mistreatment for choosing to speak up about his concerns, was highly valuable as I was actually able to meet an individual who has been directly affected by the lack of support and protection for whistleblowers.

Watching this debate allowed me to understand more deeply why laws to protect whistleblowers are needed to be reformed and expanded. Many of the members of Parliament in the debate brought up personal stories to exhibit the impact that speaking up, or the lack of speaking up, has on individuals – sometimes, it even costs people’s lives. While it was interesting to see government officials debate the topic, I also was able to pick up on the fact that while the general consensus of the debate was that extra laws and protections are highly necessary to protect the rights and dignity of people who blow the whistle, there is much less of a consensus or a clear plan on how to implement an update on the whistleblowing law. This is the area where the staff at Protect can come in and advise – since Protect works directly with whistleblowers, and is a legal charity, we understand the extent of what these cases look like and know what the next steps should be to get us to a place where whistleblowers are fully protected and where no worker feels hesitant to raise a concern in their workplace. 

Following the debate, we all met to de-brief the debate and discuss the next steps. Although the fact that members of Parliament held a debate on whistleblowing is significant, my co-workers knew that this debate was only the start of the attempt to change public policy on whistleblowing to allow more types of workers to be protected. They went over the key points of the debate, and outlined a plan for the next steps to take, which included a scheduling of a follow-up meeting with MPs of the debate to discuss legislation and reform. 

Overall, this experience during my first work was highly valuable for me in understanding the nobility of Protect and what we do, and in being able to see members of Parliament engage in discussion on the matters that we at Protect engage in on a day-to-day basis. 

 

(L-R Protect’s Adviser Laura Fatah, Head of Policy Andrew Pepper-Parsons, Chris Day and Brooke Bunn) 

By Brooke Bunn

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Protect has briefed Norman Lamb MP on why whistleblowing legislation, the Public Interest Disclosure Act needs reforming.

We will write a summary of the debate, or watch it live from 3-5pm today, July 3 on Parliament TV

Read our brief here: Parliamentary Briefing for Backbench Whistleblowing Debate July 2019

 

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How can we better support whistleblowers and protect them from victimisation? Will new regulations change what we can hope for?  These were the themes of the CREW ( Centre for Research on Employment and Work) seminar: ‘Whistleblowing: new regulations, new contexts, same old?’ held at the University of Greenwich.

However good the law or company policies, there is too often a disconnect or, as one speaker put it, a ‘de-coupling between the talk and the walk’ when it comes to treatment after an individual has blown the whistle.

First speaker, Meghan Van Portfliet (Queen’s University Belfast) looked at how whistleblowers  become labelled after speaking up, and their different responses to accepting or rejecting such a label.  Meghan’s research considers the role of advocacy groups in tackling the stigmatisation of whistleblowers.  Groups (like Protect) can offer advice and support to whistleblowers on their journey and, crucially, challenge negative views and reinforce positive ones about the value of whistleblowers to society.

The value of whistleblowing was continued in the talk from Professor A J Brown from Griffith University, Brisbane. His research on attitudes of employees and managers shows a strong belief that whistleblowing is good for business – the most effective exposure of wrongdoing comes from the individuals working in an organisation.  But even when attitudes are so positive, there is a problem with outcomes for the whistleblowers themselves.  Professor Brown described the “collateral damage” of stress and isolation that comes with the whistleblowing journey.  Even when there is no intentional victimisation or “reprisal”, few organisations look at how to support the whistleblower after the disclosure has been made and the investigation closed.  Whistleblowers may still experience “repercussions” if their performance drops due to the collateral damage. There is clearly a need for organisations to track outcomes for whistleblowers over the longer term

In Australia, the first laws have been introduced making companies liable not just for having effective whistleblowing processes in place but with criminal and civil sanctions when a company fails to protect a whistleblower from detriment.  It is too soon to tell if the approach will work but imposing a duty to support, protect and prevent detrimental acts towards whistleblowers is an interesting idea.

Dr Eva Tsahuridu (RMIT University, Melbourne) and Dr Wim Vandekerckhove (University of Greenwich) are researching the tricky issue of what can we expect of professionals who spot wrongdoing.  Eva looked at the reporting duties on accountants in the light of new international guidance on suspected NOCLAR (non compliance with laws and regulations).  She posed the question : if it is not mandatory for a professional to disclose wrongdoing, how do we assess the behaviour of a professional who fails to make a disclosure but whose code nevertheless requires them to act in the public interest?

Finally, Pim Verschuuren at University of Lausanne explored the complexity of whistleblowing in the international sporting arena.  As individual athletes are rarely “employees” they often lack legal protection if they raise concerns about, for example, match fixing or doping.    The remoteness of the international body from the whistleblower is a problem.   There is a “cognitive dissonance” between values  espoused by the international body and the fear of reprisal and lack of protection on the ground.  Too often the whistleblowing processes at international level address only the means of making disclosures, not the ends of stopping the harm.

At Protect we’re working with a number of organisations who want to improve their practices and  benchmark the effectiveness of their whistleblowing policies and procedures. The CREW research findings confirm that victimisation and stigmatising of whistleblowers remains a huge problem, and potentially deters others from raising concerns.  Can your employer show that they do “walk the talk” when it comes to protecting whistleblowers from reprisal and repercussion?

By Interim Director of Policy and Legal, Elizabeth Gardiner

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With so many corporate scandals making headline news on a daily basis, can you be sure your company has a healthy speak up culture? Are you confident your staff are comfortable to speak up about a wrongdoing they have witnessed at work? 

With new guidelines introduced by the UK Corporate Governance Code which explicitly states “the workforce should be able to raise any matters of concern”, it is more important than ever to foster a positive ‘speak up’ and ‘listen up’ culture. 

The City of London Corporation are inviting listed companies to attend a two-hour breakfast briefing on July 8, which includes a roundtable session, to better understand best practice speak up arrangements.

This event will explore how organisations can implement appropriate arrangements to encourage and support employees to raise concerns. It is not only the regulators who are taking an increasing interest in this topic, but also investors who may rely on the reporting of these arrangements as an indication of a company’s culture and overall health.

Catherine McGuinness, Chair, Policy and Resources Committee, City of London Corporation will welcome delegates. As Chair of the Policy Committee, Catherine is Deputy Chair of The City UK, the promotional body for the UK financial services industry, and the International Regulatory Strategy Group.

This will be followed by a presentation by Senior Behavioural Scientist Kate Coombs on the Banking Standards Board’s recent Annual Review and its focus on speaking and listening up.

Protect Chief Executive Francesca West will discuss the importance of effective speak up arrangements and Protect’s 360 Benchmark and then Mirza Baig, Global Head of Governance, Aviva Investors, will present on the investor perspective and the importance of reporting in this context. A brief roundtable exercise focusing on key aspects of implementing and reporting on effective speak up arrangements will also take place.

Fostering a positive speak up & listen up culture – Agenda:

08:00-08:30 Registration and networking with light breakfast served

08:30-08:40 Welcome from Catherine McGuinness

08:40-08:55 Presentation by Kate Coombs on the Banking Standards Board’s recent Annual Review and its focus on speaking and listening up

08:55-09:10 Presentation by Francesca West on the importance of effective speak up arrangements and Protect’s 360 Benchmark

09:10-09:25 Presentation by Mirza Baig on the investor perspective and the importance of reporting in this context

09:25-10:20 Roundtable exercise focusing on key aspects of implementing and reporting on effective speak up arrangements and feedback to the wider group

10:20-10:30 Closing remarks

Please note that places are limited so will be allocated on a first-come first-served basis. Please feel free to share with relevant colleagues.

If you are interested in attending, or would like more information, please email Pro.Events@cityoflondon.gov.uk

 

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This week the Charity Commission published its report into the Oxfam scandal and severely criticised Oxfam for the way it dealt with claims of serious sexual misconduct by its staff in Haiti.

The commission said there was a “culture of poor behaviour” at the charity, and issued it with an official warning over its “mismanagement”.

Whistleblower Helen Evans, who worked as Oxfam’s global head of safeguarding, resigned in 2015 because managers at the charity wouldn’t listen to her concerns.

Helen, talking to The Times, said, “Money talks, we need donors to hold charities to account. Donors, especially governments, must stop treating safeguarding as a tick box exercise that can be satisfied with policies.  They must hold charities to account by mandating the design of safe programmes, demanding robust action against perpetrators, commissioning safeguarding audits and withholding funds if necessary.

“The public though rightly expect charities to adhere to the highest standards. Today’s Charity Commission report and last year’s international development committee select report into the aid sector show we have fallen short. I still believe in the aid sector.  I believe it has a vital role in alleviating poverty and suffering.  I also fear we risk repeating history in future years if we don’t fundamentally reform the mechanisms for holding the agencies to account.”

Protect is working with the Charity Commission on a pilot to support charity workers and volunteers. What this means is that if a worker or volunteer has concerns over wrongdoing at the charity they work or volunteer for and want independent advice on how to raise it effectively, they can call Protect. If appropriate, our Protect advisers can discuss whether it is a regulatory matter for the Charity Commission.

The third sector is, of course, vast with 168,000 registered charities in England and Wales, varying in size, governance and speciality. Not all will be well run and like any organisation, risks, malpractice and dangers will be prevalent.

We find it often takes a scandal for organisations to realise the benefits of strong whistleblowing arrangements, and how a healthy speak up culture can help or prevent wrongdoing. Just as important is a strong listening culture and training to know how to handle concerns effectively.

We hope to work with many more of the UK’s 168,000 charities. Call Protect’s Business Support team on 020 3117 2525.

Watch whistleblower Helen Evans discuss the Charity Commission report

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A draft law proposed by Spanish anti-corruption activist group Xnet, is set to make Spain the first country in the European Union to transpose the European Directive for the Whistleblowers’ Protection.

The Draft Law was registered shortly after the opening of the registry in the Parliament, on 30 May. It was registered with the support of 15 MPs. On Thursday, June 13, the draft law will be presented to the press.

Xnet is a pioneering organisation in Spain leading the way in the defence of whistleblowers, anticorruption and democracy innovation in the digital era, and a member of WIN, Whistleblowing International Network (WIN) which is a founding partner of Protect.

The Xnet draft law marks an extremely important milestone as the first transposition of the European Whistleblowers’ Directive, and Xnet hopes it will prove to be an example that is replicated to the same standards across many other European member states.

Executive Director of WIN, Anna Myers, said, “The only way for whistleblower protection laws to make a real difference is if they are developed and supported by civil society who understand the challenges and the opportunities that protecting whistleblowers has for benefitting the public. WIN is delighted that Xnet has taken a lead in Europe to integrate the new EU Directive in a whistleblower law for Spain that reflects the Spanish experience and addresses the legal and social challenges that face public interest whistleblowers in that country.  Now is the time to push for the progressive laws across Europe that really make a difference.”

As Xnet text is a milestone for the fight for whistleblowers in Europe, the following organisations and persons (all of whom have extensive experience in the fight for regulations to defend those who blow the whistle on systemic abuses)  support the Comprehensive Whistleblowers’ Law created by Xnet:

Whistleblowing International Network (WIN) – Anna Myers
The Signals – Delphine Halgand
– Government Accountability Project – Tom Devine
European Centre for Whistleblower Rights and the Southeast Europe Coalition on Whistleblower Protection.
Government Accountability Project of the National Whistleblowers Centre.
Eva Joly, magistrate and former MEP
Protect (formerly Public Concern at Work)
European Center for Whistleblower Rights – Mark Worth

Read the Xnet draft law proposal in full

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The Women and Equalities Committee have  published (June 11) their long awaited report on the use of Non Disclosure Agreements in discrimination cases – which clearly shows there is much room for improvement.

The inquiry – which Protect were asked to respond to by the Women and Equalities Committee – follows the committee’s work on sexual harassment in the workplace which had highlighted that some allegations of sexual harassment were being ‘dealt with’ using settlement agreements.  The committee set out to establish whether the picture was similar for people who had suffered other forms of unlawful discrimination and harassment and to follow up on the recommendations made in their earlier report.  Much of this work was also a reaction to the #Metoo movement which exposed the woeful culture in many workplaces and that many were being prevented from speaking out about unlawful behaviour.

The evidence gathered by the Committee clearly shows there needs to be a package of measures to improve matters.  The misuse of NDAs is one element of a wider system of legislative, regulatory and judicial measures and processes that are failing to protect workers from discrimination and abuse of power.

Here at Protect, we could not agree more with the Committee’s recommendations.  Many of the suggested reforms would also make a huge difference to those seeking protection under the whistleblowing legislation (the Public Interest Disclosure Act – ‘PIDA’).  This is particularly so  when it comes to the piecemeal reform of the legislation in this area and we are calling for a thorough review of PIDA along with this vital work on discrimination and harassment.

In summary, the committee have called for the following reforms:

  • Awareness campaign required for employers and employees about how to handle grievances fairly and effectively, including signposting to relevant guidance and support
  • Investigation required of all discrimination and harassment cases regardless of whether or not settlement is reached
  • Basic reference required in all cases (so employers cannot trade reference for settlement)
  • Noted risk of blacklisting caused by publication of judgments online – but no recommendations – we would say job applicant protection is required for all ET claims to mitigate the risk of this (in all relevant employment protection legislation ie also in whistleblowing protection legislation)
  • Time limit for claims should be extended for discrimination and sexual harassmsent  from 3 to 6 months – this should apply to PIDA claims too
  • Equality review of ETS required
  • Review of legal aid for discrimination and harassment (plus whistleblowing claims)
  • Review of practical support available for litigants in person in all employment protection legislation
  • Costs – detailed guidance for ET judges and litigants as to what behaviour would be deemed to be unreasonable – refusal to sign an NDA should never be deemed to be unreasonable
  • Review of awards and punitive damages as well as Vento guidelines (for non pecuniary damage claims) – plus a presumption that employers should pay litigants legal costs if  a claim is lost (referred to as one way costs shifting) – again this is also needed in whistleblowing claims
  • Legislation required to ensure that NDAs cannot be used to prevent legitimate discussion of allegations of unlawful discrimination or harassment, and in the public interest stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives
  • Piecemeal amendment of the
  • Equality Act and PIDA is problematic – HMG to consider how PIDA interacts with discrimination law and whether the public interest test is workable
  • It should be an offence for an employer or their professional adviser to propose a confidentiality clause designed or intended to prevent or limit the making of a protected disclosure or disclosure of a criminal offence
  • Legislation required to prevent NDA’s being used to stop others from being able to take a claim – consider pay secrecy provisions in EQA for this
  • Professional disciplinary offence to use inappropriate NDAs and confidentiality clauses
  • Employers to make a financial contribution sufficient to cover the costs of the worker’s legal advice on any settlement agreement proposed by the employer, including the content and effect of any confidentiality, non-derogatory or similar clauses, and any concerns about the reasonableness or enforceability of those clauses together with the cost of negotiation.  This should be payable regardless of whether agreement is signed
  • Legislation required within two years on wording of confidentiality, NDA and non derogatory clauses requiring them to:
    •  be clear and specific about what information cannot be shared and with whom;
    • contain agreements about acceptable forms of wording that the signatory can use, for example in job interviews or to respond to queries by colleagues, family and friends;
    • contain clear, plain English explanations of the effect of clauses and their limits, for example in relation to whistleblowing.
  • Standard wording and cost consequences for failing to provide standard wording
  • Rigorous enforcement required by regulators of legal professions
  • While code of practice welcome – there is still a need for a positive duty on employers to prevent discrimination or sexual harassment. This should include substantial financial penalties for breach
  • Named senior manager on board to oversee anti discrimination and sexual harassment as well as use of NDA’s
  • Guidance required for the ‘reporting up’ of allegations, particularly by lawyers
  • Data collection on discrimination and harassment cases is required as well as info on settlement agreements
  • Corporate governance around discrimination and harassment to be strengthened with sanctions for poor performance

We will be keeping a close eye on the pace of reform in this area and calling for the same considerations to be applied to PIDA.

Read Protect’s NDA consultation response

by Cathy James, Protect Senior Legal Consultant

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