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As recent law graduates kick-starting our legal careers at Protect , the first few weeks has certainly been an eye-opening experience – we have learnt a lot in our first month on the job!

Although we had of course heard of whistleblowing, largely through shocking media news stories, within days of training on the Protect advice line, we quickly came to learn that whistleblowing is a part of everyday life and can affect any one of us in the workplace.  Not every whistleblowing concern is on the Edward-Snowden-scale and makes front page news. What may perhaps seem like a small concern, can actually have a significant and wide-reaching impact on our lives and the lives of others.

This is why whistleblowing’s protection in law is important to ensure a transparent and ethical working environment. Protect’s advice-line is integral to promoting a ‘speak-up’ culture within organisations to mitigate risk early on, and support whistleblowers throughout the challenging and courageous process of raising their concerns.

At Protect, we don’t just recite the law but we empathise with our callers. In our first week, we attended a training session given by Protect’s Senior Legal Consultant and former CEO Cathy James on ‘empathetic call handling.’  At Protect, we offer legal advice as well as practical support and reassurance that callers are taking the right steps. A large part of the Protect training is understanding how to listen, emphasise and fully understand ‘the whole picture’ of a whistleblowing concern which are often very complex.  An adviser then weighs up the options available to the caller, which can only be done by understanding their concerns and tailoring the advice accordingly to individual needs.

The practical effects of this has been evident from the ‘sifting’ stage of our training, which precedes the ‘advice’ stage. This involves discussing the caller’s concerns in detail and asking relevant questions around the law of whistleblowing. We then discuss the nature of the call and the kind of advice that can be given with a senior adviser which ensures that highest quality advice is given to each and every caller. Each year, Protect handles around 3,000 whistleblowing cases, and in its 25-year history has supported more than 40,000 whistleblowers, which is impressive! Advisers also regularly get back in touch with callers to check how they are, how they are progressing with situations and providing further support if necessary.

The weekly advice-line meetings have also been an incredibly useful addition to the training process. These meetings involve the advice-line team getting together to talk over their cases. This ensures that the team provides consistent advice, allows for different perspectives on certain issues which may have been overlooked at the time, and it ultimately allows advisers to spot trends in the type of concerns being raised.  For example, we have seen a spike in calls from the charity sector this year as well as a rise in calls from the education sector.  This shows that the advice-line is more than just providing one-off advice, going beyond the individual to look at the bigger picture of the types of concerns people are raising and how they are being dealt with. This feeds into our policy work which aims to improve the protection of whistleblowers.

Overall, we have learnt A LOT in the short time we have been here and looking forward to progressing with our training to help whistleblowers in need of support.

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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.

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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

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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.

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THE City of London Corporation hosted a breakfast briefing on best practice speak up/listen up arrangements with presentations by Protect Chief Executive Francesca West and Banking Standards Board Senior Behavioural Scientist Kate Coombs.

Opening the briefing, Catherine McGuinness, Chair of the Policy & Resources Committee at the City of London Corporation, said, ’Integrating positive speak up arrangements allow individuals to call out bad behaviour….how can we ensure trust is re-established in the financial sector and ask the public to trust the sector if employees don’t trust the sector?’

Catherine went on to tell delegates from varied sectors including finance, transport, manufacturing and retail amongst others that more work was needed which should be a priority for all of us. She mentioned the revised UK Corporation Governance Code published by the FRC which places the onus on board members to establish good speak up and listen arrangements and culture.

Kate Coombs went on to give a fascinating insight into the findings from the BSB Annual Review 2018/19, an exercise designed to inform, support and challenge banks and building societies to raise standards of behaviour and which looks at the experiences of employees who raise concerns internally within their own firms. Kate explained the reasons for people not coming forward with concerns were varied, from a lack of trust in the process, worries that confidentiality would be breached, to reputational risk from speaking out.

Protect’s Chief Executive Francesca West gave an overview to delegates of the work Protect does supporting whistleblowers and organisations with their whistleblowing culture, saying, ’93% or organisations tell us they have whistleblowing arrangements in place, but employees less high up the tree often feel these are ineffective.’

Francesca shared with delegates details of Protect’s 360 Benchmark, a tool to test the effectiveness of whistleblowing arrangements pinpointing strong and weak areas for organisations.

There was some interesting discussion around speak up/ethical apps being developed with varying views from delegates, with some thinking they were good, whilst others expressed caution as they can be seen to remove open discussion and create a ‘drop and run’ culture.

Mirza Baig from Aviva Investors told delegates, raising concerns is front and centre for organisations, adding, “As an investor, we will not invest in a company if we have deep reservations over its culture.”

Mirza went on to explain the ‘difficulties of seeing ‘beneath the bonnet’ with some organisations and often the sense of culture is only revealed when its too late.

Delegates were then asked to debate various issues such as what would help employees feel trusted to speak up and improve managers competency when handling concerns:

Table discussion feedback:

  • It’s not just speaking up, but listening up too
  • Reporting on numbers alone is easier but not very meaningful – narrative helps give context to a rise/lowering of cases for qualitative reports for stakeholders
  • Sharing good news and in what way is key
  • Language is key – do you know your people? Avoid overly legal language
  • Best practice ways of starting conversations
  • Can we learn from the airline industry which has a no blame culture and all mistakes are seen as something to learn from?
  • Offering more support for managers – how are you equipping them to handle concerns and cope with the concerns they are handling
  • Think about messaging eg in performance appraisals make sure speak up features as well as financial targets to be reached
  • Encourage open conversations eg Take a headline to work initiative to encourage debate about raising concerns
  • Listen up training
  • Responding to staff who have raised concerns – consider telling them upfront what they will be able  to receive in terms of feedback rather than no response at all
  • Get your internal reporting right and external reporting will follow suit

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By Rick Borges Head of Assessment, Banking Standards Board

I recently attended a leadership training course where one of the exercises was about listening. I had to listen to a colleague talking about an issue for 20 minutes with no interruption, maintain eye contact the whole time, demonstrate engagement through my body language and absorb the information to be able to discuss the issue at the end of the allocated time. It was a revealing exercise for me. After five minutes I was itching to ask questions, share my own experiences, suggest solutions to the issue or move on to the next exercise. Twenty minutes felt like 20 hours. I discovered that listening is hard!

We all know, however,that listening carefully may help us to understand others better and to deal more effectively with their concerns or issues before they become major problems. People are much more likely to share and speak up about their concerns if they feel listened to or see others being listened to and taken seriously. So, as a leader, are you listening to your employees’ concerns in order to promote a good speak up culture?

Results from the Banking Standards Board (BSB) Employee Survey in 2018 showed that less than half of banking employees (42%) who said that they had spoken up about their concern in the past 12 months felt that they were listened to and taken seriously; 40% said that they were not (with the remainder unsure). At the City of London breakfast briefing ‘Fostering a positive speak up listen up culture’ held this month, Kate Coombs, our Senior Behavioural Scientist and one of the speakers, said: ‘If firms are to create environments in which people feel able and encouraged to speak out, they need to focus also on how they respond to challenge and feedback when it is offered. The act of listening is what can make or break a ‘speak up’ culture’

Creating and fostering a speaking up culture, where listening is key, is not a challenge unique to the banking sector. At the breakfast event, delegates from banking, building societies, manufacturing, transport and retail amongst other sectors, shared similar challenges. Francesca West, CEO of leading whistleblowing charity Protect, told delegates that 93% of organisations tell Protect that they have a whistleblowing arrangement in place, but employees often feel these are ineffective. Francesca shared with delegates details of Protect’s 360 Benchmark, a tool to test the effectiveness of whistleblowing arrangements, highlighting strong and weak areas for organisations.When blowing the whistle or raising an issue, the type of concern – such as organisational issues (e.g. actions not in the best interests of customers, ignoring internal policies and procedures and actions that damage market integrity) or personal concerns (e.g. bullying, discrimination and sexual harassment) – may also be relevant to whether or not people feel listened to and taken seriously. In the BSB Employee Survey, when employees did speak up, they were most likely to say that they had felt listened to and were taken seriously when their concern related to sexual harassment (57%). For all other concern types, 50% or less reported that they had felt listened to, with concerns related to discrimination as low as 28%, as the chart below illustrates.

Employees experience of feeling listened to, by type of concern

 

The BSB survey identified fear and futility as the main barriers to speaking up. Individuals who had wanted to raise a concern had sometime snot done so because theythought either that it would be held against them or that nothing would happen if they spoke out.Being seen to listen is particularly important in cases of the latter. In some business areaswe observed that there was a mismatch between perception and experience. Employees had not spoken up because their perception was that it would be futile to do so, but the experience of those who did speak up was often a positive one.Where this is the case, firms should—as well as continuing to ensure that those who speak up feel listened to —also focus on how to communicate and share the positive experiences of speaking up, in order to encourage others to do likewise.


Rick has senior responsibility for the BSB annual assessment of culture, behaviour and competence across member firms.

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Protect Head of Policy Andrew Pepper-Parsons said: "It is good news for whistleblowers that the Government are proposing a crackdown on NDAs with new legislation to prevent the cover up of workplace harassment, discrimination and assault.

"Protect were invited to give evidence to both the Women & Equalities Select Committee and the Government's consultation on NDAs where we stated there is 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.

It is important that any reforms are not narrowly focused on harassment and discrimination cases. The need for greater clarity in NDAs also applies to whistleblowing about other wrongdoing including reporting financial misconduct,safeguarding, environmental damage and so on.

We will be pressing the Government to use the opportunity of these reforms to simplify the language around the anti-gagging provisions in the Public Interest Disclosure Act (PIDA) so that all whistleblowers can feel more secure in blowing the whistle where they have signed a settlement agreement."

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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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