Prescribed Persons Reporting Duty - Protect

GUIDANCE FOR PRESCRIBED PERSONS

Sometimes a whistleblower may not feel able to raise their concerns with their employer, they may fear being ignored or victimised, or they may have already raised concerns which have not been dealt with. Whistleblowing doesn’t work unless concerned workers can approach organisations outside of their employers. Regulators have a vital role in this framework in holding public and private sector bodies to account and ensuring best practice in the areas for which they are responsible. Prescribed persons are regulators or professional bodies who are prescribed by the Government to hear concerns and who are deemed responsible for certain sectors/industries and/or issues.

This website provides an overview for our Annual Whistleblowing Reports: A Best Practice Guide.

What is a Prescribed Person?

Under UK whistleblowing legislation, the Public Interest Disclosure Act 1998 (PIDA), a prescribed person is an individual or organisation which usually has an authoritative relationship over organisations, industries or individual workers, such as regulators and professional bodies.

The Public Interest Disclosure (Prescribed Persons) Order 2014 sets out the list of organisations and individuals who are prescribed persons that a worker may approach outside of their workplace to report wrongdoing, risk or malpractice. An up-to-date list of prescribed persons can be found here.

Prescribed persons provide workers with a mechanism to make their whistleblowing disclosure to an independent body where the worker does not feel able to disclose directly to their employer, or as a route of escalation where the workers feel their concerns have been ignored or no action has been taken by the employer.

Prescribed persons play a major role in whistleblowing processes. The ability to blow the whistle to prescribed persons provides workers with a safer alternative to making a wider disclosure, i.e. to the media or to a non-prescribed regulator, as there are fewer tests to satisfy to qualify for legal protection under the Public Interest Disclosure Act 1998. Prescribed persons also provide organisations with a safer alternative to silence, as they provide another channel for concerns to be raised and, with investigatory and regulatory powers, prescribed persons are well-placed to act on the information that has been disclosed to them.

List of Prescribed Persons

Not all regulators or professional bodies are prescribed, we encourage all to apply to be prescribed via BEIS. Here is a summary of arguments for why regulators and professional bodies should apply for this legal status:

What are the advantages of being a Prescribed Person?

It demonstrates to public that the organisation is transparent, accountable and taking whistleblowing seriously which will boost public confidence
Being easily identifiable as a prescribed person for a sector can help to ensure that whistleblowing disclosures are taken to the right place to be investigated
Being prescribed helps regulators/professional bodies to effectively deliver public functions, maintain reputation, build trust and encourage more whistleblowers to come forward
Whistleblowers provide an important source of information and intelligence to prescribed persons and an opportunity for greater understanding of the sectors they regulate
It provides an opportunity to drive up standards by setting rules for internal whistleblowing arrangements of the entities they regulate. This leads to a greater chance that concerns will be raised through employer’s own whistleblowing channels – stopping harm before it becomes a matter for the regulator which in turn will reduce regulator workload
Being able to whistleblow to a prescribed person can help prevent disclosures being made to press or worse – not raising the concern at all

What are the advantages for whistleblowers approaching Prescribed Persons?

Whistleblowers who approach a prescribed person can generally qualify for legal protection more easily if they are victimised or dismissed for raising their concerns as compared to making a disclosure to a non-prescribed body external body, particularly the press. Find out the legal tests a worker would need to satisfy here.
Whistleblowers may find it more difficult to understand how to engage with regulators who are not prescribed as there may be less transparency. Whistleblowers more clearly knowing who to tell and how to do it removes both an operational and psychological hurdle

What are the duties of a Prescribed Person?

In a bid to make prescribed persons more transparent when dealing with whistleblowers and their concerns, in 2017 the Department for Business, Energy and Industrial Strategy (BEIS) introduced a reporting duty on the UK’s statutory regulators. This duty makes it compulsory to publish an annual report in relation to the number of whistleblowing disclosures they have received, action they have taken as a result and how this has impacted their own regulatory work. Those exempt from the reporting requirement are auditors appointed to audit the accounts of small authorities, MPs and Ministers of the Crown.

The reporting period runs 1 April to 31 March with the reporting period beginning 1 April 2017. The report can be a standalone report or incorporated within an annual report. The report must be published on the Prescribed Person’s website within 6 months of the end of the reporting period, or “in such other manner as the body considers appropriate for bringing the report to the attention of the public”.

The reporting duties are listed in the Prescribed Persons (Reports on Disclosures of Information) Regulations 2017. The Department for Business, Energy and Industrial Strategy (BEIS) states the aim of the duty as being:

“[T]o increase transparency in the way that whistleblowing disclosures are dealt with and to raise confidence among whistleblowers that their disclosures are taken seriously. Producing reports highlighting the number of protected disclosures received and how they were taken forward will go some way to assure individuals who blow the whistle that action is taken in respect of their disclosures.”

What are Prescribed Persons under a duty to provide in the report?

An explanation of the functions and objectives of the Prescribed Person
The number of protected disclosures received, and the number further action was taken. Further action can include referring disclosures to an alternative body, investigating, making recommendations to employers on how to rectify problems and enforcement actions where evidence of wrongdoing has been found
A summary of the action taken for the disclosures and what the outcomes were e.g. the issue was resolved after first contact with the employer or enforcement actions were taken
A summary of how disclosures have impacted on the Prescribed Person’s ability to perform its own functions and meet its objectives during the reporting period

What is not included in the duties?

Prescribed Persons are not required to report on disclosures that it reasonably believes do not fall within the description of matters in respect of which that person is so prescribed
The report must not contain information that would identify individuals who have made any disclosures or employers or other persons in respect of whom a disclosure of information has been made

What makes a good Prescribed Person whistleblowing report?

Whilst the duty to report has increased transparency, there is still inconsistency in the approach to the reporting duty. At Protect, we believe that standards matter. We have created this guide to assist prescribed persons in their reporting duties in the hope to create greater consistency.

Download here

DOs for effective Prescribed Person reporting:

Have a designated section explaining the PIDA reporting duties
Provide context and analysis, not merely statistics or vague comments
Include key findings e.g. common categories of issues raised, significant increases or decreases in disclosures and potential reasons why
As a result of the protected disclosures received, breakdown what actionable steps have been taken to improve the Prescribed Persons’ standards and service delivery

Other resources:

BEIS Prescribed Persons Guidance

Collation of Prescribed Persons Whistleblowing Reports:

Conclusions from 4 years' of data

Read our blog from legal adviser, Phoebe Mather, looking at 4 years’ worth of prescribed person data and the conclusions we can (and cannot) draw from this.

Read here

Better Regulators Guide

Better Regulators

In April 2020, we published our Guide, “Principles for Recommended Practice: Better Regulators”. The Guide was created from research obtained in a series of round table discussions with regulators and professional bodies to give guidance on best practice and top principles to use when handling a whistleblower.

This is a guide aimed at regulators. If you are a whistleblower looking for advice on raising concerns with a regulator, see our advice pages here.