Following the  Women and Equalities Committee report into sexual harassment in the workplace – which found the government, regulators and employers all failing to tackle the issue of sexual harassment in the workplace – Protect asks is the government taking enough action?

The government have pledged to bring in a Code of practice on sexual harassment for employers and look into options to better regulate NDAs, including introducing a standard clause explaining the limits of the agreement in plain English.

Also proposed is  extending the list of prescribed persons for whistleblowers to include the Equality and Human Rights Commission (EHRC).  This gives a new route for whistleblowers to raise concerns about sexual harassment with an organisation with some enforcement rights, and we support the extension.   The Government are also considering whether the Police should be included in the list – an interesting idea, but we’d argue that if the Police are to be prescribed, their remit shouldn’t be limited to concerns about sexual harassment alone.

However, despite the government’s claim that “the employment protections for whistleblowers can already cover disclosures of workplace sexual harassment”, we need to be clear that this is no simple remedy to the widespread problems identified by the #Metoo campaign.  When an individual suffers sexual harassment in the workplace, their usual remedy is through the internal grievance process.  To fall within the protection of the Public Interest Disclosure Act (PIDA), the individual raising a concern has to have a reasonable belief that the employer is breaching a legal obligation and that the disclosure is in the public interest.  It may seem self-evident that telling an external organisation – such as the EHRC – that sexual harassment has occurred should be a protected act – but it isn’t.  The law was changed to include the public interest test to stop individuals using PIDA to raise concerns about their own employment rights.  This may not be straightforward and will rest on the number of people effected, the seriousness of the harassment, who the harasser is and how seriously the individual is affected. While it is likely the test will have a broad application it is an additional hurdle for victims that does not exist in the Equality Act. If the test is not met,  a private grievance followed by an individual claim to the tribunal is still their only employment remedy.

But what of the new Code of Practice – surely that will make a difference?  Again, we welcome the proposal to introduce a statutory code, to give a strong steer to employers about what they should be doing to prevent sexual harassment in the workplace.  However, this should adequately consider how to support and encourage whistleblowers who speak up on behalf of victims. But without an enforcement mechanism, it remains with the individual to complain if the Code isn’t followed.  The government have proposed a wait-and-see approach to how tribunals respond to the Code – which isn’t likely to make bad employers tremble.  Even the threat of an uplift in a tribunal award for failure to prevent sexual harassment pales into insignificance when contrasted with the fines employers might face for breaching, say, GDPR requirements.  Sadly, the government haven’t agreed with the Committee’s recommendation of a mandatory duty on employers to prevent harassment –  a breach of which could lead to enforcement action by EHRC.   It is disappointing that the good practice in some sectors making whistleblowing arrangements mandatory  – such as in Financial Services – haven’t been followed here.

On the plus side we look forward to contributing to a number of the proposals that the government has accepted: the need for a wider public information campaign about legal rights, a review of the protection for volunteers and interns, and a consultation on the much misunderstood use of Non Disclosure Agreements .

 

 

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The Government has published legislation it describes as the ‘biggest package of workplace reforms for over 20 years’ – implementing 51 of the 53 recommendations of the Taylor review into UK modern economy workplaces.

Whilst welcomed – Protect see a missed opportunity for workplace reforms for whistleblowers.

The government review into working practices in the modern economy –  led by Matthew Taylor, chief executive of the Royal Society of the Arts, looked at seven key recommendations including how a worker was defined, and whether sick and holiday pay could be enforced.

The first positive Government announcement: “Extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave”.  We will be pushing the Government and Parliament to ensure that this statement also includes encouraging staff to raise whistleblowing concerns. This will help to alleviate low awareness among workers about their whistleblowing rights where 63% of UK workers either incorrectly stated there was no legal protection for whistleblowers or were unaware of the protection.

We also welcome the commitment to quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000.”  We would like this commitment to be extended so that Employment Tribunals are given the power to make recommendations to employers on how to improve their whistleblowing arrangements.  For example, where a case before them highlights a training need for managers, a weak whistleblowing policy or poor board governance. These could all be powerful additions to the tribunal’s menu of sanctions.

The Government have made a commitment to “legislate to improve the clarity of the employment status tests to reflect the reality of the modern working relationshipsbut there is no detail as to what Parliament will be asked to consider in this area. We welcome the intention to clarify this difficult area – there are already inconsistencies in how “worker” is defined for whistleblowing rights compared with other employment rights. The legislation is an opportunity to extend protection for many individuals including job applicants, students in many professions, volunteers, non-executive directors. (For a full list see our infographic).

Protect Head of Policy, Andrew Pepper-Parsons said, “These Government reforms represent modest reforms at best for whistleblowers because there are key issues missing from the proposals that need to redress the balance of power between employer and employee. This is an opportunity to improve important legislation, give a better framework for employers and raise awareness amongst workers of whistleblowing and their rights.”

Key missing reform issues:  

PIDA suffers from access to legal advice and representation is limited. These proposals do not address the issue that representation at tribunal can have a real effect on the outcome with many whistleblowers having to take their claim forward as a litigant in person.  Our research found 68 per cent of those lacking representation lost their case, while this falls to 53 per cent with representation.

PIDA is silent on standards expected from employers. These are inconsistencies in how regulators deal with whistleblowers and PIDA provides little in the way of legal guarantees. This includes both in terms of what a whistleblower should expect if they approach a regulator with concerns or guidance to organisations they regulate (except the Financial Conduct Authority who have created rules for banks).  We want to see real teeth in the proposals so that employers are placed under greater obligations to deliver better workplaces.

Legal threats to whistleblowers: There are a number of laws that make it an offence to disclose certain information (for example, Section 105 Utilities Act 2000). Such laws contain no public interest defence or gateway and will also mean that PIDA protection is not available. There is a worrying tendency for such laws to be used in the workplace as a means of suppressing concerns, pursuing or threatening whistleblowers. Such practices undermine the policy aims of PIDA to ensure concerns are raised by workers at the earliest opportunity. Legislative reform provides an opportunity to address this legal loophole.

No proposals to confront the misuse Non-disclosure agreements (NDA’s): It may well be that there are separate Government proposals in the pipeline on this issue, yet this is an obvious missing elephant. For whistleblowers 43J of PIDA makes it clear that a whistleblowing concerns cannot be gagged: the legislation allows individuals to raise public interest concerns outside the employment relationship where they would be protected under PIDA, but this is a little known or used section of the law. Yet due to low awareness around whistleblowing rights among UK workers this is often missed.  Alongside a reference to whistleblowing rights in the day one initial statement given to employees, we also propose clearer wording in law on this right, and a requirement on lawyers who are advising whistleblowers about settlement agreement to explaining this right more clearly.

The Taylor Review recommendations

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In June 1994, in small village in Northern Ireland, six Catholic men were shot dead at point blank range by loyalists, as they watched the World Cup in their local pub. The main shooter was accompanied by two others, and although within 24 hours the local residents had a strong indication of whom the murderers were, over twenty four years later British Security Forces have yet to charge anyone for the crime.

After years of being drip fed information, the families of those killed started to demand answers. Investigative journalists met with the families, people professionally involved in the case at the time and eye witnesses to search for the truth behind the failings.

“No Stone Unturned” a film by Alex Gibney, Barry McCaffrey and Trevor Birney explores the Loughinisland massacre and how it came to pass that such a tragedy was left unsolved for over 20 years.The film is the first published work to name the murderer suspects. Several newspapers have now followed. This incredibly brave step was taken with all due care: the journalists involved even warned the authorities several months in advance, so that protection may be offered to the named individuals. Why the authorities were not able to provide a transparent conclusion or logical methodology in the original case is not known. But by using information which was only a fraction of what was available to the state, journalists Barry McCaffrey and Trevor Birney demonstrated with conviction that the police had more than enough information to investigate and convict, they even had DNA evidence linking the main suspect to a balaclava worn at the scene of the crime.

The film – screened to a packed and passionate audience at the National Union of Journalists (NUJ) Headquarters earlier this month – highlighted several failings in the investigation. The lead investigator on the case was able to maintain his month long holiday plans the day after the murders took place. The getaway car, the largest piece of evidence relating to the case, was destroyed with very little explanation. Attempts to decipher the mysterious actions which had been taken were obfuscated and no clear answers were forth coming. Still, the families kept up their fight.

Eventually, in 2016, the Police Ombudsman produced a (secondary) report, which finally gave the families the truth they had been seeking for so long. The report found that there had been collusion between the police and the criminals. Unfortunately, it did not identify any individual officer as being at fault, and created no accountability for the failings.

The film highlighted the importance of two whistleblowers who leaked information to those in authority who they thought would know what to do with it. Unfortunately, it took the making of this film for the potential impact of the information they provided to be realised, and for the whistleblowers to know the risk they took was worth it in the end.

Shockingly, Barry McCaffrey and Trevor Birney are now being legally pursued for document theft, from the office of the Police Ombudsman, who denies having made a complaint of document theft. Perhaps Oscar-winning director Alex Gibney’s reaction reflects the majority of public opinion. In a tweet, he said the film had exposed the failure of police to properly investigate the massacre. “Police reaction? Re-open murder investigation? No. Arrest the truth tellers,” he wrote.

In a further twist, the original 2016 Police Ombudsman report was amended in March 2018 to further distance the main suspect, Ronald Hawthorne, from the wrong doing mentioned in the report.

Protect knows the value of open and honest journalism, even (and especially) when this reveals information which is embarrassing to the state.  We  commend the National Union of Journalists in their robust and compassionate support to these outstanding professionals and offer our support of Barry and Trevor, and will continue keeping a keen eye on any attempts to persecute them for their achievements. With deepest respect of, and support for, the families of those who were killed in Loughinisland.

By Laura Fatah, Adviser

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The start of a new year is a good time to address organisational change – and we at Protect are hoping to work with more and more organisations in 2019 to help improve trust and create a safer environment for whistleblowers.

5 common mistakes:

  • Thinking you’ve got it covered with a policy on your intranet
  • Lack of training for those receiving/handling concerns
  • Failing to give feedback to your staff
  • Poor communication and staff engagement
  • Senior management failing to endorse


We are offering a 20% discount on our 360 Benchmark tool throughout January
which focuses on three key areas – governance, operations and staff engagement – to assess whistleblowing or speak up arrangements.

“It can be hard for organisations to gauge whether their whistleblowing arrangements are effective – a policy on an intranet is not enough. The idea of the 360 benchmark is to help companies look at their culture and ask how much staff trust you when they raise concerns. It’s trying to move beyond ‘just the numbers of concerns’ and really transform cultures” explains Protect Development Director Jon Cunningham.

The 360 Benchmark was developed over 18 months by a team at Protect and a working group party made up of compliance and governance executives.  It measures how organisations engage with staff, how a company records and investigates employee concerns and evaluates written policy and accountability.  Upon completion, organisations receive a report identifying gaps in their procedures and how they have performed against similar organisations.

Since launching the 360 Benchmark tool in the summer, the Protect Business Support team has had extremely positive feedback from organisations who have completed it. Make 2019 the year of good governance for both your business and your staff.

If you are interested in discussing the 360 Benchmark 20% discount which will be available throughout January 2019, please contact the Business Support team

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An OFGEM whistleblower – Greg Pytel – has been told that he is unable to challenge the victimising behaviour of his employer in the Employment Tribunal after he raised public interest concerns about the implementation of smart meters.  He is now having to take his case to the Court of Appeal, at his own expense.

Current legislation makes it a criminal offence (sec 105 of the Utilities Act 2000) to disclose information about the utilities sector.  The offence is so widely drawn that it prevents a whistleblower from enforcing their legal rights, through the Public Interest Disclosure Act (PIDA), against victimisation or dismissal for raising concerns.

The Employment Tribunal originally found sec. 105 frustrated the ability for Pytel to get a fair tribunal hearing, and breached his right to freedom of expression. But the tribunal lacked the power to declare the sec. 105 officially ‘incompatible’ and read wording into the act, as the Human Rights Act allows, that would allow Pytel’s case to be heard.

The EAT stated that though it also lacked the power to declare the legislation officially ‘incompatible’, it pointed out that only the Government or Parliament could create an exception for whistleblowing under sec. 105.  It concluded that Pytel’s whistleblowing claim could not progress, even though on the facts stated at tribunal, the claim in absence of sec. 105 could have been heard.

Pytel will now have to take his case to the Court of Appeal who have the power to issue a formal declaration of ‘incompatible’ against sec. 105 and that his right to a fair hearing.

We at Protect have intervened in the case in support of Greg Pytel who is being prevented not only from bringing a claim but also from speaking openly about the concerns he has.  This case shows how secc. 105 has an incredibly wide reach and impact and we are calling on the Government to urgently amend the law to allow whistleblowers to both raise their public interest concerns, and enable them to enforce their legal rights.  It’s clear from the legal judgments that the courts are probably unable to make this change even when they declare the law incompatible with the ECHR.

Pytel said, “OFGEM now accepts that Section 105 prevents me from having a fair trial, contrary to my basic human rights, and – more importantly to the public – my concerns about the smart metering project can’t be examined. The Government themselves have nothing to say about this.

He added, “I am therefore left having to take the Government all the way to the Court of Appeal to appeal the judgment and get a formal declaration of incompatibility. I should not have to do so. This requirement puts a burden on me as an individual litigant to correct the government’s systemic problems at my own expense, systemic problems which should not have occurred in the first instance. It should be role of public authorities to avoid such systemic problems occurring, and to correct them voluntarily if and when they do.”

Protect Head of Policy, Andrew Pepper-Parsons said, “OFGEM’s admission that this aspect of the Utilities Act is unlawful, highlights the very real urgency for the Secretary of State to use his power to remove this legislation that unlawfully gags whistleblowers and denies them access to justice.

“Given that there are many statutes containing similar ‘gagging clauses’ – with criminal prosecution as punishment for breach – we at Protect will be calling on urgent action as soon as possible. ”

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Please be aware our advice line will have slightly altered hours over the holiday period.

  • Christmas Eve – closed
  • Christmas Day – December 25 – closed
  • Boxing Day – December 26 – closed
  • Thursday December 27 – 9.30-4.30pm
  • Friday December 28  – 9.30- 4.30pm
  • Monday December 31 – closed
  • Tuesday January 1 – closed

The Protect advice line  – 0203 117 2520 – resumes normal hours, 9am-6pm on Wednesday 2 January 2019.  During our altered hours, you can still contact us at whistle@protect-advice.org.uk 

Thank you and season’s greetings from all at Protect.

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My view on whistleblowing is that it is a worldwide problem, and in a commissioned Protect report, ( ‘Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK’) gives recommendations about how whistleblowers should be treated.

Whistleblowing plays a vital role in the achievement of good governance in sport as in every other governmental or non-governmental organisation. It is my view that whistleblowing is a worldwide problem. In a commissioned Protect report the then Chair wrote in her forward to ( ‘Report on the effectiveness of existing arrangements for workplace whistleblowing in the UK’) :“Effective whistleblowing arrangements are a key part of good governance. A healthy and open culture is one where people are encouraged to speak out, confident that they can do so without adverse repercussions, confident that they will be listened to, and confident that appropriate action will be taken. This is to the benefit of organisations, individuals and society as a whole.”

Recent scandals in sports show once again that whistleblowers play a vital role in uncovering wrongdoing and that they are likely to suffer seriously detrimental consequences from those on whom the whistle has been blown.

The findings by a Court of Arbitration for Sport appellate panel (CAS) and in various reports prepared for the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC) have demonstrated wide spread state sponsored doping in Russia. Without the revelations of four Russian whistle blowers, two of whom were athletes and two involved with testing, it seems likely that the world would have known nothing of what, according to these findings, has been going on in Russia.

In the first WADA Independent Commission Report, dated November 9, 2015, the authors wrote: ‘Concurrent with the enforced silence/omerta imposed, when those [persons] involved in doping activities are exposed, they almost invariably attempt to attack, discredit, marginalize and intimidate any whistleblowers. It is well known that many sport organizations treat whistleblowers more harshly than they treat the dopers on whom they inform. Whistleblowers know this, but they are nevertheless willing to endure such treatment.

Those who are, or have been, dopers may revolt against the system of which they have been part. Those who may have been caught and sanctioned may also hope to achieve a reduction in whatever sanction may have been imposed.

Those words sound very familiar to those involved with the protection and support of whistleblowers, like Protect.

One of the first important whistleblowers in point of time was Lilya Shobukhova, a world class and very successful marathon runner. Her revelations to WADA and to the International Association of Athletic Federations (IAAF) in early 2014 directly led to an order by the IAAF Ethics Commission suspending the President of the Russian Athletic Federation, a Russian long distance coach and the son of the president of the IAAF ‘’for life from any further involvement in any way in the sport of track and field”. An IAAF official was also suspended for five years. The life suspension orders were upheld on appeal by CAS. The IAAF official did not appeal.

The good work of Protect has a key role in helping to transform the culture of whistleblowing in sport.

Sir Anthony Hooper, QC, has investigated corruption for the International Association of Athletic Federations (IAAF)

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Protect is calling on clearer legislation surrounding NDAs (non-disclosure agreements) it says is preventing whistleblowers from speaking out over gagging fears and threats of legal costs.

Protect (formerly Public Concern at Work) is calling for clearer wording for 43J of the whistleblowing law, the Public Interest Disclosure Act (PIDA).  It wants all NDAs, or settlements, to contain set wording to read; ‘for the avoidance of doubt, nothing should preclude (the employers name) from making a ‘protected disclosure’.  This should be a regulatory requirement in every sector, following the lead of the Financial Conduct Authority who has made this a requirement for all settlement agreements used by banks.

Protect is also calling on the legal profession to to push back against any organisation that seeks to use NDA’s as a means of shielding wrongdoing.  What’s more lawyers should be required to give advice to whistleblowers about the fact no NDA will prevent them from raising a public interest whistleblowing concern.  Without this advice many workers are unaware of their rights in this area given the low awareness in the workforce around whistleblowing rights (68% of workers either were unaware of or wrongly believed there’s no legal protection for whistleblowers.

Following the Sir Philip Green NDA debacle, NDAs have once again hit the headlines over the use of NDAs in the NHS. An anonymous radiographer has told BBC Radio 4 they were fearful of speaking out and made to sign an NDA.

National Guardian Dr Henrietta Hughes, who oversees speaking up in the NHS, told the BBC Radio 4 Today programme, “I think it’s a great concern that staff who leave employment under a settlement agreement believe they don’t have the right to speak up. It’s enshrined in the PIDA law that workers who have concerns about safety do have the right to speak up but the wording of settlement agreements can be so opaque that people don’t believe that they have those rights.

She added, “They may be legally accurate, but the implication is that workers fear if they do speak up they may be liable to return an amount of money or even be liable for legal costs as well. I think its absolutely important we stop this.”

Protect Chief Executive, Francesca West said, “The Philip Green case and recent NHS case highlighted on Radio 4 – as well as the many, many calls we receive to our advice line from the health sector –  just go to show how we now need a complete overhaul of PIDA to ensure whistleblowers can safely speak out, to stop harm.”

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It was great to see so many of our supporters –  stakeholders, organisations we work with, parliamentarians, legal friends, former staff, trustees, and of course, whistleblowers –  at our 25th anniversary reception at the House of Commons, kindly hosted by Lord Shinkwin.

Lord Shinkwin shared with the room his own moving experience of whistleblowing whilst working in the charity sector, and the invaluable support he received from Protect, when we were known as Public Concern at Work.

Protect Chief Executive Francesca West thanked everyone for coming, and pointed out just how vital the work of Protect is for so many. She explained nobody wakes up saying ‘today I’m going to whistleblow’ and that whistleblowing is an unknown entity for most, until faced with a public interest concern directly.

Since 1993, Protect has supported 40,000 cases, and we hope to support many more over the next 25 years

Read our 25th anniversary highlights report

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Since whistleblowing legislation was introduced under the Public Interest Disclosure Act 1998, employees have been encouraged to come forward with disclosures of dangerous or criminal behaviour, without fear of reprisal or dismissal. Arguably the need to speak out against such activity is especially pertinent to the education sector, which deals with young and vulnerable people to whom there is an overriding duty of care. But despite the legislation and what appears to be an increase in disclosures, whistleblowing remains a sensitive, almost taboo, subject that is also accompanied by a great deal of confusion and concern about repercussions.

We have no comprehensive statistics to give us the full picture about the extent of whistleblowing in the education sector.  We are grateful to Protect for not only raising the importance of whistleblowing, but also for providing us with some numbers: they have seen an increase in the number of cases brought to their free confidential advice line for workers by people working in education, from 243 in 2012 to 382 last year.

An increase in whistleblowers could be telling us that there is growing confidence within our education sector to report wrong doing which will have always existed and needs rooting out.  However, the National Governance Association’s (NGA) experience of state schools at present is a sector better characterised by a climate of fear, rather than confidence. This may seem counter intuitive given there are more good schools (as categorised by Ofsted’s inspections) than ever before, but there is now a broad consensus that the accountability system is driving unnecessary workload and some negative behaviours in schools.  This not only can have detrimental effects on pupils, but is also contributing to the teacher shortage the many schools across the county are having retaining teachers.

The Secretary of State for Education, Damian Hinds MP, addressed NGA’s summer conference this year, saying:  “Vital as accountability is, the current system that we have can lead to stress and anxiety for some teachers, leaders and governors – the fear of inspection, of a single bad results year, the fear of the school being made to convert to an academy. I want to recast accountability not as something to be feared, or a blame game – but rather analysing what’s not working and then fixing it, collaboratively.”

This is an important time for rethinking school accountability and I was pleased to serve on the National Association of Headteacher’s Accountability Commission which reported this September in time to feed into Damian Hinds’ deliberations.  However, the scope of that Commission was limited to those parts of the accountability system which most worry our professional senior leaders – Ofsted and performance measures – and did not cover the other levers of public accountability, such as the role of governing boards and accountability to stakeholders.

More generally, the state schools sector has failed to think carefully enough about the role of the whistleblower, and their place in an intelligent accountability system. Protect has also reported that many teachers had been left unsure about whom to approach when they saw something wrong at work. This has been exacerbated by the widespread conversion of local authority maintained schools to academy status which has taken place since 2010 and the growth of multi-academy trusts.  There is considerable confusion over the way different types of schools are regulated, and changes have left some school staff, as well as parents unclear, about the official routes for complaints and who, exactly, is responsible for looking into accusations of malpractice. Different agencies are responsible for different aspects of the operations of academies, some are not clear about who they should approach if they have financial concerns, while others are unaware that local authorities remain responsible for safeguarding children.

‘The more autonomous legal structure of academy trust does provide more potential for wrong doing’

An increase in whistleblowing has therefore been linked by some commentators to both a lack of local authority oversight and more opportunities within the academy structure for wrongdoing. We do not have the information to make this assessment. However investigative journalists do report  higher numbers of staff bringing them stories from academies, accompanied often by a sense of frustration that the system of oversight is not working. There is also increased risk in that many academy trusts are growing and thereby responsible for very large numbers of pupils and thus greater amount of public funding that ever before.

The more autonomous legal structure of academy trust does provide more potential for wrong doing.  This should however be mitigated by strong trust governance, but until recently, this was not properly accepted and acknowledged within the system.  And even though it has now been accepted by powers that be – from the Government minister to the National Schools Commissioner to the chief inspector – that trust governance is a challenge which needs more attention, there is still not the knowledge embedded within the system as to what this means in practice or how to achieve it.

Whistleblowing by staff has in recent years been important in raising the financial mismanagement of public funding within schools; however sometimes the term has been wrongly assigned to others external to the school or academy trust.  For example, it has been reported that almost every investigation into academy trusts by the Education and Skills Funding Agency (ESFA) between the years 2013 and 2017 was prompted by a whistleblower as opposed to the direct oversight activities of ESFA.  However the financial irregularity or fraud was more frequently detected – or at least reported – by external auditors, not whistleblowers, whose professional yet independent status placed them in a good position to spot irregularities that may otherwise have flown under the radar of the ESFA.

The auditing of academy trust accounts is in fact part of the oversight and accountability system – that is why accounts are called accounts!  The requirement for academy trusts to publish audited annual accounts, which does not apply to local authority maintained schools, is providing a much needed higher level of scrutiny and transparency, and it is therefore more likely to expose financial wrongdoing than if they were not subject to a professional independent audit.

‘A need for Education and Skills Funding Agency (ESFA) to improve its own checks’

On the other hand, teaching unions have argued that such revelations offer a damning indictment of the current system of academy oversight, accusing it of lacking the capacity to prevent wrongdoings, as opposed to just dealing with them once they have been exposed by others. The system should not need to rely on whistleblowers, and I agree there is a need for the ESFA to improve its own checks.  However we are also aware that many local authorities are not able to carry out the financial oversight they once did, largely due to reduced funding available to employ the specialist staff needed.  Similarly, unless the ESFA receives more funding, it is difficult to see how it has the capacity to gain significantly more intelligence to inform its oversight role.  The last ESFA Chief Executive, Peter Lauener, affirmed his commitment to hearing out whistleblowers, thus appearing to award them a significant role in the accountability system.

NGA has been arguing that the EFSA should be merged with the National Schools Commissioner’s directorate of the Department for Education (DfE) in order to improve the oversight of academies.  It makes little sense for financial oversight to be separated from educational oversight with the consequence that governance oversight is not owned nor fully understood by either arm of the DfE.

Every maintained school should have a whistleblowing policy, with the governing body responsible for agreeing and establishing this. Similarly, academy trusts must have appropriate procedures in place for whistleblowing, making it clear all concerns will be responded to properly, consistently and fairly.  Communicating the policy to staff is vital, emphasising that whistleblowing legislation aims to protects workers from victimisation.

I have been told on numerous occasions the fear of reprisal and victimisation prevents individuals speaking out. It has been reported that a teacher has been suspended after using whistleblowing procedures to raise concerns about a failing school with Ofsted, and that other potential whistleblowers have not come forward for fear of triggering an Ofsted inspection of the school they work in.  Not enough has been done in the schools sector to acknowledge and value the role of whistleblowers. We would like to see whistleblowers thanked and commended, not condemned, for bravely speaking up on public interest issues.

Whistleblowing can identify risks and emerging trends, and it can ultimately improve sector-wide resilience

Currently missing from the debate on this subject within schools is the critical engagement on the part of school leaders, who can find themselves in an uncomfortable position.

The best leaders should treat crisis as a catalyst for constructive, creative change. Whistleblowing can identify risks and emerging trends, and it can ultimately improve sector-wide resilience in the context of disruptive changes. Secondly, policy on whistleblowing is a touchstone for organisational culture, providing school leaders with the opportunity to create a safe space for employees to speak out against bad practice and unethical behaviour. This requires bravery to see whistleblowers not as a threat but as part of an effective learning environment.

I am pleased to serve on the Association of School and College Leaders (ASCL)’s Ethical Leadership Commission which has just published an Ethical Framework for Educational Leadership. It builds on the Nolan principles for public service, exploring in more detail what these mean for school leaders, including those serving on governing boards. The same principles are also designed to give concerned colleagues confidence in calling out unethical behaviour. Courage is included in the framework as one of the virtues against which to test ethical dilemmas:  ‘leaders should work courageously in the best interests of children’ and ‘we should hold one another to account courageously’.

There is a challenge to ASCL’s Commission to help change the culture in the sector to one in which people are not afraid to call out unethical and inappropriate behaviour, in the same way leaders of schools and academy trusts need to do this at institutional level. NGA is pleased to be working with schools and their governing boards during 2019 on a pathfinder project to explore how the ‘Framework for Ethical Leadership in Education’ can be used well and as part of this work, we hope to have those conversations about whistleblowing.

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