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Tag: blog

Protect – Speak up stop harm > Blog Archives

Advice for Employers as the World Whistleblowers Day approaches

Posted on by Stella Sutcliffe

With World Whistleblowers Day fast approaching (Tuesday, 23 June), the Business Support team at Protect has been reflecting on the work of employers who are commendably continuing to strive to achieve a strong and positive speak-up culture, and how those with best practice policies could use this national focus day to signpost employees to their arrangements.

Originally created by a group of NGOs working as part of the South East Europe Coalition on Whistleblower Protection in 2019, World Whistleblowers Day was created to raise global public awareness in combating corruption.

The day is about the important role of whistleblowers in combating corruption and maintaining national security.

In these times of flux, when expectations and duties of organisations towards all their stakeholders have been constantly shifting, it is more important than ever for employers to demonstrate support for anyone who would raise a concern about wrongdoing or malpractice within their workplace.

New and very different practices and ways of working may lead to problems which employers cannot afford to miss.

Mass remote working could produce opportunities for data breaches, new reporting methods may lead to mis-reporting of finances, and new working environments may create health and safety hazards or safeguarding issues.

We have already seen so many examples of whistleblowers raising life and death issues from a medical point of view – the Wuhan doctor who raised the alarm about the virus, and health and care workers coming forward about PPE shortages.

The Protect Advice Line has been busier than ever, with 40% of our calls being Covid-19 related. Calls to us are usually from individuals who do not know where to turn, or who don’t feel confident following the procedure set out by their workplace. This could be evidence of mistrust, but could also be a sign that organisations are just not communicating their guidelines and attitude towards whistleblowing as well as they could be.

The value of speaking up to stop harm has never been clearer, and it could benefit businesses greatly to demonstrate that their support for staff by talking about World Whistleblowers Day.

Employers regularly ask us how they can talk to employees about whistleblowing without creating alarm, or suggesting problems which may not exist. World Whistleblowers Day is a great opportunity to create a positive conversation around the arrangements they have in place, and why they are so important.

Here are some top tips from our Business Support team on how to use World Whistleblowers Day to increase levels of staff engagement on the subject of speaking up:

  • Circulate your policy with a word from your chief executive. Don’t have a policy yet? Contact us and we’ll help you write one
  • Appoint a whistleblowing champion who will flag fly for your arrangements and monitor the effectiveness of your whistleblowing arrangements. Remember to communicate their details in your staff newsletter/ on your intranet
  • Test employee confidence on whistleblowing by creating a survey, listening exercises or hosting focus groups. Our team can help you with these things if you wanted to explore options that are right for you
  • Train your staff – especially department heads and line managers who may be the first point of call for all kinds of queries and concerns
  • Create ‘FAQs’ and ‘How to’ guides for staff and people managers which bring your policy to life and clearly show who the best person to contact would be

Please tell us if and how you recognise World Whistleblowers Day so that we might build case studies of employers who are leading the way with making sure that malpractice and wrongdoing is avoided, or resolved quickly, and that whistleblowers are encouraged and protected.

By Stella Sutcliffe, Business Support Manager at Protect


Protect – Speak up stop harm > Blog Archives

Bullying and Whistleblowing

Posted on by Burcak Dikman

Far too often is bullying a prevalent concern in the workplace, which places a strain on workplace culture and leaves employees stressed. In the wake of a Cabinet Office investigation into the bullying behaviour of Home Secretary Priti Patel that is set to be concluded this week, the former Home Office permanent secretary Sir Philip Rutnam has recently lodged an employment tribunal claim under the Public Interest Disclosure Act 1998 (PIDA) to argue that he was constructively dismissed for whistleblowing about the Home Secretary’s alleged behaviour.  This case underlines the negative impact a bullying culture can have on an organisation and raises important questions about when a bullying issue crosses over from HR issue into whistleblowing.

Is bullying protected by the whistleblowing protection

The tribunal case will be closely watched by legal commentators as it is expected that Rutnam’s case will consider whether concerns in relation to bullying are covered by the PIDA and the “public interest test”. While it is often assumed that there is a rigid division between whistleblowing concerns and individual HR issues such as bullying, the reality is there is significant overlap between the two. An overly rigid approach to dealing with cases by employers may mean that concerns that should be handled as whistleblowing are incorrectly dealt with as grievances. In short if an employer deals with bullying as purely a complaint between two members of staff they may miss a situation where a damaging culture of bullying exists.

On Protect’s Advice Line 5% of our cases from last year ,137 from a sample of size of 2796, were bullying whistleblowing cases where the concern was based on a culture of bullying, rather than just an isolated incident. This means it may not be effective for employers to just investigate through a grievance or HR mechanisms as it’s a matter that concerns a whole team, department or even a whole workforce, rather than just an individual’s contractual rights.

The role of regulators in a bullying culture

Some regulators such as the Financial Conduct Authority (FCA) have taken an interest in cultural issues like bullying as a way to gauge the overall whistleblowing culture of a bank or insurance firm. In its “Dear CEO Letter” the FCA stated that “that poor culture in organisations…can lead directly to harm to consumers, market participants, employees and markets”. This approach has been adopted by other regulators of professionals where culture and bullying conduct by individuals could impact consumers or an individual’s fitness and practice. Other regulators should be taking a similar approach to the FCA by viewing culture as being integral to internal whistleblowing arrangements in the organisations they regulate and introducing rules or standard for such arrangements. This is Principles 5 of the Protect’s guide for regulators, the Principles for Recommended Practice: Better Regulators”.

Other indicators that make bullying a whistleblowing issue

Other indicators for when concerns about bullying may engage the public interest is if it concerns a large number of employees and/or if it affects their rights in a significant way, such as high numbers of work-related stress. Additionally, a culture of bullying may have a wider impact on the public and to the services that the organisation provides. For instance, in a health setting this may affect the quality of care that is being provided by a team which in turn creates patient safety concerns, which would engage the public interest and should warrant a separate investigation.

For the well-being of staff and for the delivery of services, it is important for employers to understand when cultural issues in the workplace become a whistleblowing matter, and that they can identify this from complaints and grievances made by employees and act appropriately.

What Should Employers should be looking out for?

  • Spot trends from whistleblowing concerns and grievances – This will help you identify, investigate and resolve concerns in an effective way and help you make organisation-wide changes to resolve systemic issues.
  • Consider the impact of bullying issues on service delivery – The impact of workplace bullying may be felt by your organisation, its customers or the general public. Make sure that you ascertain the impact of bullying issues so that you are able to better investigate and resolve them.
  • Create and maintain a healthy speak-up culture – Make sure employees feel empowered to come forward to raise concerns. Clearly set out the difference between whistleblowing and grievances in your whistleblowing policy and make sure that managers are properly supported in triaging difficult issues around bullying culture.

 

Being vigilant to trends or repeat incidents from multiple complaints or grievances e.g. harassment (#MeToo).  This again will alert an employer when a grievance issue has an additional whistleblowing element. Fostering a healthy workplace culture is key to minimising bullying as a concern within itself, as well as the knock-on effects that it may have on wider wrongdoing.

By Burcak Dikman


Protect – Speak up stop harm > Blog Archives

Building Confidence in the Regulatory System – or not?

Posted on by Andrew Pepper-Parsons

In the UK, certain regulators are recognised as ‘prescribed persons’ by the government, for example the Care Quality Commission and the Health and Safety Executive. Being a ‘prescribed person’ means that an organisation can be approached to receive and handle specific concerns, as listed online.

This matters for whistleblowers, as making a disclosure of information (i.e. blowing the whistle) to a prescribed person is an act which carries stronger legal protection than disclosing information to a body which is not ‘prescribed’.

The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, passed on 1 April 2017, imposed new rules: a duty on prescribed persons to publish annual reports on the whistleblowing disclosures they have received by 1 October each year.

Prescribed persons have a duty to report:

  • The number of disclosures received from whistleblowers
  • How many of these disclosures lead to a regulatory response/action
  • What action was taken, and the operational impact of this (e.g. if the information from the disclosure helped the prescribed person to perform it’s regulatory function)
  • A summary of the prescribed persons own functions and objectives

The Department for Business, Energy and Industrial Strategy (BEIS)

BEIS, who collate all the reports each January, have stated:

“The aim of this duty is to increase transparency … and to raise confidence among whistleblowers that their disclosures are taken seriously. Producing reports … will go some way to assure individuals who blow the whistle that action is taken in respect of their disclosures.”

However, BEIS also confirm:

“In collating these reports, BEIS has not assessed them for compliance with the duty. The legal obligation falls on the prescribed person to meet the annual reporting duty requirement.”

The Problem

The danger of introducing a duty and not even assessing compliance, far from enforcing it, is that this can bring the opposite of the desired effect – and reduce confidence in the regulatory system.

Our records show that almost three years on from the introduction of the regulations, almost a third of prescribed persons (32%) are not fully compliant with the reporting duty, and one in 20 have not published any of the information required by the duty. However, when prescribed persons do not comply with the duty to report, the government take no action for this breach of their duties; and it appears there are no plans to change this.

Without enforcement of the duty, how can confidence be built from the reports being published; how can a whistleblower be sure their concerns won’t be ignored, when over a third of all those prescribed don’t provide all the information that they are required to by law.

Protect are campaigning for a new law, which would enable whistleblowers to hold regulators to account if their concerns are ignored, or if their confidentiality is breached. Our new law would create a requirements for regulators to uphold set standards when it comes to handling and responding to whistleblowers. An oversight body, a Whistleblowing Commissioner, would be established, which would have powers to issue penalties if these standards are breached.

By Laura Fatah


Protect – Speak up stop harm > Blog Archives

Whistleblowers can stop new “furlough” fraud

Posted on by lou@protect-advice.org.uk

The Covid-19 crisis has given rise to fast changing laws and regulations, and new loopholes and opportunities for fraud have emerged. Within a few weeks of the furlough scheme’s introduction, Protect has seen a rising trend in calls from whistleblowers concerned their employer is acting unlawfully.

Whistleblowers will be vital in policing this scheme to ensure that tax payers are not defrauded out of vital public funds.

Here is a summary of some of the cases (with changed names)  from the Advice Line:

Being asked to come back and work as a “volunteer”

The majority of the cases we have received to our Advice Line have focused on situations where workers have either been asked or told to go back to work even though they are part of the job retention scheme.

Craig works for a small company where all the staff have been furloughed. He and other staff have been asked to carry on working for the company as “volunteers”, so the work will be unpaid. Craig has raised this as part of a group of concerned colleagues, but his managers have responded to say that such arrangements are legitimate and that they took legal advice.

Some of our cases show whistleblowers being aware that their employer is breaching the rules across the company

We have also seen cases where whistleblowers have become aware of actions or plans to breach the Furlough rules that doesn’t involve themselves personally being affected.

Timothy works in the finance department of a small company.  During his work organising the company accounts he notices that he and 5 other members of staff (including a director) have been placed on furlough leave.  All the staff on the scheme are still working for the company.  Timothy raised his concerns with his line manager, the Finance Director. The response was to remove Timothy from the scheme, but the line manager refused to remove anyone else as he felt bodies such as HMRC would not have the resources to prosecute all those companies that breached the rules.

Dismissal, victimisation or threats when the concerns is raised

Worryingly, yet unsurprisingly we have seen whistleblowers threatened, victimised or dismissed once they have raised their concerns.

Some have been threatened with dismissal if they object to their employers plans:

Eloise is a senior manager working in financial services.  The Chief executive sent an email to all directors saying that staff will be furloughed (this is around 30 people) despite the fact that all staff are working from home and that as the staff work manly from sales commission which falls outside of the scheme. Eloise raised her concerns with the Chief Executive who threatened her with dismissal if she objected to the plan.

Other whistleblowers have been dismissed after voicing their concerns.

Mohammad was furloughed by his employer but was then asked to carry on working.  When Mohammad refused to work as it went against the Government guidelines his employer threatened him with dismissal.  A few days later Mohammad received a letter making him redundant as the company lacked the cash flow to pay his wages.

What a concerned worker can do if concerned:

Check the Government Guidance

Though the guidance has changed many times it is a good resource to look at what the Government have produced for workers, and what they expect from employers. This will give any concerned worker an idea of whether what the employer is doing breaches this or not.

Consider raising it first internally

Raising the concerns externally

If you do not feel that internal channels will be effective, or if you have already raised the concern internally, you can contact HMRC on their Fraud Reporting website via their online form.  You can also contact Protect for advice through our online form or by calling 020 3117 2520.

by Head of Policy Andrew Pepper-Parsons

Protect – Speak up stop harm > Blog Archives

Covid-19, Social Media and Whistleblowing

Posted on by Andrew Pepper-Parsons

Advice to health workers thinking of using social media to raise concerns during the Covid-19 pandemic. 

Media reports of whistleblowers being gagged, dismissed or threatened with dismissal for speaking out publicly about issues in the global pandemic are worrying, and we at Protect have voiced these concerns in a statement saying how short sighted this approach is from employers.

A theme that has emerged in many of the reports is that whistleblowers have been dismissed, victimised or threatened by their managers after raising their concerns via social media.  A Tweet or a Facebook post about the lack of protective equipment or a lack of social distancing policies may bring the whistleblower into conflict with their employer.

Is a whistleblower legally protected if they use social media to raise concerns?

A whistleblower who is dismissed, forced out or victimised by managers or co-workers for using social media to raise concerns could be protected by the whistleblowing legislation the Public Interest Disclosure Act (PIDA). Getting this protection is not straight forward as the legal tests a whistleblower would need to fulfil are the most stringent in PIDA when compared to situations where someone has raised concerns with either their employer or a regulatory body.

Disclosures to an employer

Raising the concern with the employer is the easiest way to get protection, the whistleblower simply needs to show:

  • They had a reasonable belief the concerns show a health and safety risk to any individual, or a breach of a legal obligation (which may include health and safety law) or one of the other categories of concern set out in the legislation.
  • They had a reasonable belief that raising these concerns was in the public interest (which generally means that they had a wider impact – not just on the worker themselves).

In both cases a reasonable belief means the whistleblower could be wrong about the concerns, e.g. after investigation, the concern itself did not endanger someone’s health and safety, but they would still be protected under law.[1]

Disclosure to a regulator

PIDA protects disclosures made to either a regulator or law enforcement body (the Government maintain a list of such bodies that fall into this category called the Prescribed Person list). Here the whistleblower would need to show reasonable belief in the concerns they were raising but on top of this they would need to show they reasonably believed what they were raising was ‘substantially true’.[2]

 Disclosures via social media

PIDA applies the same legal tests for protection to a social media post as would be applied to making a disclosure to a journalist or an organisation that is not a prescribed regulator (e.g. raising concerns about a lack PPE to health campaign group).

The whistleblower now needs to show that the social media post was a reasonable thing to do, in addition to showing they had a reasonable belief in the concerns, and a reasonable belief the concerns were ‘substantially true’.[3]

The legal tests are no longer based on the belief of the whistleblower at the time, instead, this is an Employment Tribunal deciding whether the social media post was a reasonable thing to do. PIDA outlines some key things a whistleblower would need to show:

  • they tried and failed to get the concerns addressed by their employer or a regulator
  • they reasonably feared victimisation if they raised the concerns with the employer or the regulator
  • they feared a cover-up (e.g. destruction of evidence) if they reported the concerns to their employer or a regulator
  • there is no regulator prescribed under PIDA to report the concerns to
  • the concerns are of an exceptionally serious nature

The key point is that for social media posts to be protected by PIDA requires a whistlebower to demonstrate that the disclosure was reasonable by showing that either they couldn’t raise the concerns else where or that they had tried, and this failed to get the concerns addressed.

In the immediate crisis, the Employment Tribunal may consider a whistleblower approaching the press as more reasonable than indiscriminate use of social media. Responsible journalists will be used to balancing the dual public interest of reporting on the crisis’ while avoiding spreading panic.  That said, there is case law that demonstrates what the Tribunal would consider  a concern “exceptionally serious in nature” that would warrant a disclosure to the media without approaching their employer or regulator first.  The case of National Trust vs Collins showed that Collins was justified in leaking a report detailing a chemical spill on a beach because the National Trust and the local council were too busy with a dispute over who was responsible for the clear up. During this time the public still had access to the beach, which posed a danger.

While PIDA doesn’t require a whistleblower to raise their concerns with their employer or a regulator first, it does require the whistleblower to have a compelling reason why they’ve gone down this path.

Is there a better place to raise the concerns?

The key question before using social media to raise any concerns is to ask yourself whether there’s a better place to approach first. Here’s an overview of those options:

Your employer

As well as having an easier path to protection under PIDA, a disclosure to the employer may get a quicker response to most concerns as they will be able to act on the concerns faster than a regulator, the media or a social media post.

Some options in the health service include:

  • As a first port of call speak with your line manager or supervisor
  • If you’ve tried to raise the concerns with your line manager or supervisor and they’ve been ignored, or for whatever reason you cannot raise it with your line manager or supervisor:
  • There are FTSUG (Freedom to Speak Up Guardian) if you work in England in certain NHS institutions.
  • With named contacts in your organisation’s Whistleblowing or Speak Up policy (see Protect’s webpage for information on raising concerns with your employer).  These can include directors, compliance personnel and board members.
  • Senior managers, directors, board members etc. who you trust or feel would listen to your concerns.

Raising the concerns internally first will not prevent a whistleblower from raising the concerns externally, whether that is a regulator, journalist or a social media post.

Regulators in the health service

If you do not feel that internal channels will be effective, or if you have already raised the concern internally, your next step may be to contact a regulator. Approaching a regulator with the concern comes with better protection and can still put pressure on an employer who has failed to take the concerns seriously.  When considering approaching a regulator look at our webpage on raising concerns with a regulator.

These are the regulators for the health service:

For concerns about Personal Protective Equipment (PPE) the following bodies, though not a prescribed body, could be a good place to approach with concerns before contacting a journalist or using social media.  They include:

Contacting a journalist

Approaching a journalist may well be a better option than using social media to raise concerns even if they both come with the same stringent legal tests.  This is due to how a journalist can shield a whistleblower’s identity through protection of sources and use a whistleblower’s concerns alongside other material, such as disclosures from other whistleblowers to publish a story about the situation.

If you are considering contacting a journalist or raising your concerns in a social media post either contact us at Protect on 020 3117 2520 or send us an email through our contact  online form.  You can also get advice from your trade union.

By Andrew Pepper-Parsons

[1]S.c. 43B (1) (a)-(f) of the Employment Rights Act.

[2] S.c. 43F (1) b (ii) of the Employment Rights Act.

[3] 43G (b) and (d) the Employment Rights Act 1996


Protect – Speak up stop harm > Blog Archives

The way we work may have changed – but whistleblowing in the right way remains a constant

Posted on by Hari Raithatha

COVID-19 has drastically changed the way in which we work. Government guidance has led to the temporary closure of a number of businesses while others have been tasked with finding quick and effective ways to ensure that staff are able to work from home where possible and that business can continue as usual.

For organisations employing key workers, there is now a heightened need for services to be delivered safely. We know from our Advice Line that this time of public emergency is giving rise to new concerns about keeping patients, customers and colleagues safe.  Staff need to feel supported, valued, and looked after.

The way in which we work may have changed, but the need for workers to be able to raise concerns when things go wrong has not. Whistleblowing is an organisation’s best early-warning system and now more than ever organisations should ensure that staff feel safe and supported when they speak up and that issues are properly investigated and resolved.

Organisations should consider the following steps to ensure that staff can blow the whistle properly:

  1. Building a positive speak up culture: While homeworking (for those able to work remotely) may present physical barriers to staff raising concerns you need to make sure that these do not prevent staff from raising concerns. Employers who have staff working from home should make sure that managers regularly touch base with staff and encourage them to raise any concerns that they have and make sure that managers are equally accessible to staff during working hours (via phone, email or video). Encourage your senior leaders to lead by example and drive this cultural shift by championing a good speak up culture.

 

  1. Update your whistleblowing policy: Now is a perfect time to review and update your whistleblowing policy to make sure that it complies with legal, regulatory and industrial developments. Make sure you provide a number of clear channels for staff to raise their concerns (including the names and contact details of key contacts) and ensure that your policy is in plain English and easily accessible online.

 

  1. Test staff attitudes to whistleblowing: Organisations should make sure that they proactively engage with staff and ensure staff are aware of how and where to blow the whistle. Staff need to have trust and confidence in their organisation’s ability to handle their concerns. Why not take the time to test your organisation’s culture through online staff surveys, focus groups or listening exercises – all of which can be delivered remotely.

 

  1. Train your staff : While training staff face-to-face may be difficult, e-learning and video conferencing make it possible to train staff even when they’re working remotely. Make sure that all staff across your organisation understand what whistleblowing is; how and where to raise and escalate concerns, the difference between whistleblowing and grievances and where they can get independent advice as a whistleblower. Make sure that managers listed within your whistleblowing policy are trained on their role and responsibilities. You may want to develop FAQs for managers which explains how they should handle the confidentiality and victimisation of whistleblower.

 

These are difficult and uncertain times, and a strong message that you value your staff and are listening to their concerns will help to protect you, your staff and the general public.

 

Written by Hari Raithatha, a Senior Adviser on our Advice Line. Hari works closely with Protect’s Training and Consultancy team to help organisations meet whistleblowing best practice. He has qualified as a solicitor with Protect in 2020. 


Protect – Speak up stop harm > Blog Archives

PIDA Blog –Time to reform gagging clauses

Posted on by Andrew Pepper-Parsons

Gagging clauses have become quite the talking point thanks partly due to the Harvey Weinstein scandal and the #MeToo era and countless other news stories exposing their misuse. Controversial debate around the use of gagging clauses, or NDAs (non-disclosure agreements) and financial settlements to conceal sexual assault and harassment has tarnished the image of NDAs and highlighted their harmful impact of encouraging a culture of silence in cases of serious misconduct.

NDAs, sometimes referred to as confidentiality clauses or “gagging clauses” are written into a contract to stop information being disclosed. They serve a useful and legitimate role in employment contracts and settlement agreements. They protect commercially sensitive information and prevent employees sharing this information with their competitors.

However, there is increasing evidence these gagging clauses are being used unethically by some employers to intimidate whistleblowers, silence victims of harassment and discrimination, and conceal wrongdoing in the workplace.

But there are limitations to what can legally be ‘gagged’ by NDAs, which workers are often unaware of.

The current law on whistleblowing states any agreement which prevents a worker from whistleblowing, or making a protected disclosure is void ( s43J Public Interest Disclosure Act, PIDA, 1998,) but s43J has been hotly debated. NDA wording is often vague and contains no clear guidance as to how confidentiality clauses should be used and to what extent they should highlight the worker’s rights.

Protect has long been calling for NDA reform. A key ask in our Draft Whistleblowing Bill to reform PIDA is NDA reform. We want to see stronger and clearer wording to prevent the use of gagging clauses and a guarantee whistleblowers faced with a settlement agreement will get legal advice on any non-disclosure clauses.

A  Government Consultation March-April 2019 by BEIS  (Department for Business, Energy & Industrial Strategy) concluded clauses being used to silence and intimidate victims of harassment and discrimination cannot be tolerated. Almost half (48%) of respondents had seen an example of a confidentiality clause that attempted to cloud a worker’s right to make a protected disclosure or overstretch the extent to which the information is confidential. The Consultation stated that it is important that workers understand their rights when they sign a confidentiality clause so they are not misled that they cannot disclose certain information. 83% of respondents agreed that confidentiality clauses should clearly highlight the disclosures that are not prohibited.

Protect suggested the following reforms to the law:

 

  • an exclusion in any NDA allowing for the disclosure of information about workplace harassment or discrimination to a regulator - not just the police - so wrongdoing that falls short of criminal conduct can be investigated and individuals held to account
  • improved advice for all employees: there is a very low awareness of employment rights around whistleblowing, as well as discrimination and harassment, and obscure wording around settlement agreements does not aid understanding• a standard document to be handed to all employees who sign a settlement agreement, explaining the limits of all confidentiality clauses in non-legalistic language

In our Draft Bill we address the lack of clarity of gagging clauses in settlement agreements by proposing clearer wording for s43J:

‘No agreement made before, during or after employment between an individual and an employer may preclude that individual from making a protected disclosure.’

Additional to this clearer wording is that any settlement agreement involving whistleblowing will have a clear statement saying that nothing in the agreement can stop the individual escalating the concerns, and certificate from an independent legal advisor explaining the requirements and limitations of the confidentiality clause.

We believe these provisions will make a whistleblower’s rights and responsibilities under a settlement agreement much clearer.

 

Blog written by Rhiannon Plimmer-Craig


Protect – Speak up stop harm > Blog Archives

Whistleblowing, transparency and activism

Posted on by Louise O'Neill

Academics, journalists, whistleblowers, advocates and members of the public gathered at The Shard for an event hosted by Warwick Business School recently to discuss the hurdles they faced in their own journeys and recent trends in whistleblowing.

Protect’s Policy Officer, Laura Fatah, attended the event arranged by academics Marianna Fotaki and Iain Munro (www.whistleblowingimpact.com) with special guest Katharine Gun. Katharine was a translator based at British intelligence agency, GCHQ, who raised concerns in 2003 over a US plot to spy on the United Nations diplomats to ‘give the Americans an edge’ in their attempts to persuade the Council to go to war with Iraq.

Katharine Gun & Official Secrets

Gun knew this wasn’t right on three counts: GCHQ was being used for political means; the aim was to achieve war, and the diplomatic processes of the UN were being corrupted. She had also privately conducted her own research; and found “no reasonable reason” for the planned invasion. However – she was bound by the Official Secrets Act.

A lack of internal options lead Gun to conclude she had no option but to go against all her training and contact the media. Her whistleblowing has been made into the recent film ‘Official Secrets’.

Although the two states of the UK and the US eventually did go to war – they did so without approval of the UN, and amid international disapproval. Katharine Gun will be remembered for revealing to the world the underhand tactics of the US and UK.

Public Interest

The ‘public interest’ and who decides what this is was a key discussion point throughout the event at the Shard. Gun noted that the public interest defence, as used by the jury to successfully dismiss the case against Clive Ponting (who blew the whistle on the sinking of the Belgrano during the Falklands War), is no longer part of the Official Secrets Act. The public jury in that case clearly wanted to respect the societal value of the information that Ponting revealed, despite its confidential nature.

Modern Warfare

Mark Curtis, Editor of Declassified UK, spoke about the continued use of covert and potentially unlawful tactics the UK state still employs. He referred to cases when the UK is seen supporting the military operations of countries who have been found to be in breach of international law, such as the continued Saudi Arabian military assault of Yemen, the Israeli government’s illegal occupation of Palestinian land, and the US drone programme in Syria, Pakistan, and Afghanistan. Curtis highlights the particular difficulty whistleblowers face when raising concerns about the actions of their own government, as opposed to the vast majority of whistleblowers who raise concerns about malpractice or wrong doing in non-governmental institutions.

Trends in Whistleblowing 

Academic Iain Munro gave a brilliant summary of his recent work exploring trends in whistleblowing, and how the modern whistleblower is often supported by a network – without which they could not be effective. Members of the network include lawyers, journalists, confidants, advocates and translators. The use of technology was also discussed, and how best this can be used to securely share source material; technology has enabled the open source sharing of data with journalists and members of the global public. There is room for a genuine debate over the role of redaction in various forms of networked whistleblowing, but there is little doubt that it has played a huge role in stimulating public debate over issues including the legitimacy of recent wars, the 2008 financial crisis, offshore tax evasion and global mass surveillance.

Dave Lewis, of Middlesex University, explored the idea of pro-active protection for whistleblowers, including a protected status parallel to that of pregnant women in employment. However, this would naturally require the sacrifice of confidentiality. Ian Foxley spoke of his own ordeal, which is still on going, and how whistleblowers might learn ‘survival techniques’ from other human rights defenders. There was agreement that whistleblowers are faced with an overwhelming psychological toll and often need support.

It was a fascinating event with many interesting points put across by both whistleblowers and academics. Protect look forward to discussing the issues raised and our campaign for a new law for whistleblowing with all the delegates.

By Laura Fatah


Protect – Speak up stop harm > Blog Archives

Protect’s Hari Raithatha trades places with Howard Kennedy’s Diarra Brown

Posted on by Louise O'Neill

 

Protect and law firm Howard Kennedy joined forces for a successful secondment, offering a three-month secondment to Protect’s trainee solicitor, Hari Raithatha, and Howard Kennedy’s trainee solicitor, Diarra Brown. So, how did they get on, and what did they both learn?

Qu: What did you do, and what did you learn?

Hari: Being at Howard Kennedy gave me a real insight into how employment law issues impact organisations on a daily basis. While working in the employment team I worked on a real mix of issues including advising on the employment issues in the acquisition of company and also advising on a disability discrimination matter as part of the firms Pro Bono program.

Diarra: To be proactive and to put yourself forward this is very much appreciated especially in an organisation like Protect. Taking the time to listen and show empathy can drastically improve someone’s outlook.


Qu: Was it what you expected, did anything surprise you?

Hari: I was really surprised by the mix of issues that the employment team would be involved with at any one time. Nothing could have prepared me for the challenge of putting case bundle together!!!

Diarra: I didn’t know what to expect from the secondment and went into it with an open mind. What suprised me, was the amount of challenging calls the advice line receives. The variety of concerns raised and the fact that calls can come from senior managers and HR. As an advisor you need to ensure that you are as equipped to deal with this.


Qu:  What were the challenges?

Hari: Having to constantly think on your feet and get up to speed with a number of different areas of law in a short period of time.

Diarra: Learning everyone’s names… I would have to say getting used to a completely different environment in a short space of time, but it was good to try a new way of working.


Qu: Would you recommend the experience and what we’re your takeaways?

Hari: Absolutely! Working at Howard Kennedy has really opened my eyes to how dynamic and constantly changing employment law is.  It has been great to have gained an insight into this. It’s shown me the value of providing clear, practical solutions to clients, which I’m really keen to develop in my work at Protect training businesses and advising whistleblowers. Visiting the Employment Tribunal and Employment Appeals Tribunal with Counsel (while daunting!) has really helped me understand some of the issues faced by litigants in person when presenting cases.

Diarra: Yes, I’d recommend the experience, as I got as much as I put in and put my hand up for everything! I think this was appreciated. My takeaway was never underestimate how valuable your input can be. Especially to a whistleblower in the midst of a challenging work situation.

Qu: What will you miss?

Hari: The weekly lunch and learn sessions with the other corporate trainees and the amazing office. And also working round the corner from Borough Market! But I’ll miss some of the great people I met – but hope to stay in touch with them!

Diarra: The people without a doubt.


Protect – Speak up stop harm > Blog Archives

Protect wishes volunteer Jo good luck in her new role!

Posted on by Louise O'Neill

I joined Protect as a volunteer just after I finished my Legal Practice Course and although I had only a basic grasp of aspects of employment law, Protect’s work really appealed to me.

Summarising Employment Tribunal judgments and highlighting the relevant discussions of the Public Interest Disclosure Act seemed daunting at first, but after an informative induction and feedback on a few initial case summaries, I felt much more confident pulling out and writing up the relevant points for use by Protect’s advisers. I have learnt so much over the last six months, seeing the legal challenges from the perspectives of both the whistleblower and the employer. As well as becoming familiar with the legal tests applying to whistleblower protection, I also attended internal meetings and took part in training sessions on whistleblowing law.

Having spent six months at Protect, I have now come to the end of my time here and am moving to a specialist corporate law firm in the City, Lewis Townsend LLP to continue my legal career.

The people at Protect have been inspiring for their commitment and empathy towards whistleblowers and I am so sad to be leaving. I will continue to recommend Protect as a fantastic and rewarding volunteering opportunity and can only hope the charity and its work receives the support it deserves.

 

By Protect volunteer Jo Cousins