At Protect, we advise thousands of whistleblowers a year on their public interest concerns. We signpost many of them to regulators and professional bodies on the Government’s list of prescribed persons when their employer fails to address their concerns, or when they cannot raise a concern with their employer, often for fear of reprisal. Prescribed persons consequentially play a crucial role in the UK’s whistleblowing structure (the current list can be seen here).
Since 2017, prescribed persons have been subject to a whistleblowing reporting duty. The aim of this duty is to increase transparency and confidence among whistleblowers that their disclosures are taken seriously by their respective regulators and professional bodies.
The reporting duty requires prescribed persons (except for small local authorities, MPs and Ministers) to annually publish details on their functions and objectives, the number of whistleblowing disclosures they have received, the number where further action was taken, a summary of what action was taken, outcomes of the action, as well as how the disclosures have impacted on the prescribed person’s ability to perform its functions and meet its objectives.
As part of our Better Regulators Project, we have reviewed and analysed each prescribed persons’ whistleblowing reports since the reporting duty began up to the 2021-22 reporting period (not all of which have yet been published). This research analysed the number of concerns received by the prescribed person during the reporting period, the number they deemed to be ‘qualifying’ (if specified), whether they reported on the actions taken as a result of the disclosures, and whether they reported on the impact the disclosures had on their regulatory work.
We have discovered mixed compliance with the reporting duty. Worryingly, we have seen an overall lack of detail around the positive impact that whistleblowing disclosures have had; in many cases, the prescribed person only provided a generic or vague statement on this impact. Therefore, to assist prescribed persons in their fulfilment of the reporting duty, we have created the Annual Whistleblowing Reports: Best Practice Guide.
Notable Findings in Whistleblowing Reports
Finance and Taxation
Resourcing of financial regulators has been the source of recent debate, in the context of an increased focus on combatting economic crime. The whistleblowing reports in the financial services sector show a general increase in disclosures received, but a mixed picture when it comes to significant action being taken.
The Financial Conduct Authority (FCA) received 1,041 reports between April 2021 and March 2022. Significant action was taken in only three cases, but in a further 96 cases, there was action to reduce harm. 99 cases were used to inform the work of the FCA but no direct action was taken. Therefore, during 2021-22, the FCA was still considering 801 cases (77%) and only took action in 9.5% of cases.
The Bank of England (Prudential Regulatory Authority) received 166 disclosures in 2021-2 (fewer than in earlier periods) of which 156 were deemed to be protected disclosures. They reported that four disclosures led to significant regulatory or supervisory activity, 20 disclosures provided intelligence of prudential value, 60 disclosures provided intelligence, but did not directly lead to any regulatory or supervisory activity; and a further 72 disclosures (46%) are still being assessed.
The Financial Reporting Council received a big increase in disclosures in 2020-21, receiving almost seven times as many compared to the previous year. However, they reported that 53 of the 67 disclosures received were not within their remit and were passed to other regulators as appropriate.
HMRC saw over a 50% increase in reports in 2020-21 compared to the previous year, rising from 8,892 to 13,640. Of that, there was a four-fold increase in the number of reports deemed to be ‘qualifying’ protected disclosures – rising from 2,121 to 8,151, although 5,489 (67%) were deemed to require no further action. Such rises may be linked to furlough fraud and other Covid-19 related tax relief. HMRC did not give any further detail as to the type of action they took in response to the concerns reported, or how the specific reports helped to further the regulatory aims of the organisation, save for providing a generic statement on how whistleblowing generally helps to clamp down on tax evasion and failure to pay minimum wage.
The Serious Fraud Office ‘took action’ in 89% of the 150 qualifying disclosures received in 2020-21. What specific form this action took was not detailed but the SFO includes sending a personalised response, requesting further information and/or conducting further enquiries with partner agencies as taking action. In 17 cases, it was deemed not possible to take further action due to lack of contact details or it was assessed as unreasonable to do so. The SFO provided no details on the specific regulatory impact of disclosures received other than stating that whistleblowers continue to provide a vital source of information to the SFO in the fight against economic crime.
There may be good reasons for some concerns to be assessed as needing no further action. However, there is a huge disparity between action taken in 89% of cases by SFO, and HMRC assessing that 67% of cases required no action. For those concerns at the FCA/PRA still “under assessment”, this may be because the case is complex and needs detailed work before it can be concluded.
It is difficult to assess which regulators are effectively dealing with whistleblowers without knowing more about the resources available to deal with the increased caseloads. For whistleblowers who may have raised concerns at significant risk to themselves, a response that “no action” has been taken will be disappointing, but a message that the case is still “under assessment” can be very difficult to understand. These whistleblowers will need regular feedback and reassurance from the regulators that their concerns are being taken seriously.
Health and Care Sector
The Care Quality Commission (CQC) also saw a large increase in reports in 2020-21: 15,829 compared to a yearly average of 9,438 across the previous three years – an increase of over two-thirds and the highest number of concerns received by a prescribed person during that year. Of these disclosures, 85% related to adult social care and so such increases are unsurprising in light of the Covid-19 pandemic. During the pandemic, the top three types of concerns Protect’s Advice Line received in relation to increased risk to public safety were lack of PPE, lack of social distancing and failure to observe government guidance with just under half of these concerns coming from the health and care sectors. In their 2020-21 report, the CQC provided generic detail on examples of actions which may be taken such as triggering a safeguarding process, carrying out an inspection, working jointly with other partners or taking enforcement action. However, no specific statistics in relation to the whistleblowing concerns received were provided, save for a statement that 54% of inspections by CQC were triggered by an information of concern which includes whistleblowing, as well as complaints and safeguarding. There was no comment on the regulatory impact of the disclosures received, which is something we would like to see in future.
Similarly, over the past two years, the Nursing and Midwifery Council (NMC) has seen a significant increase in average reports, rising from an average of 47 between 2017 and 2019 to 149.5 between 2019 and 2021. The NMC state approximately one-third of disclosures made during 2020/21 related to the pandemic, focusing heavily on issues with health and safety and management issues with 177 disclosures dealt with by their fitness to practise team. The NMC submit their annual whistleblowing report in a collective report alongside the General Chiropractic Council, General Optical Council, General Medical Council, General Dental Council, General Osteopathic Council, General Pharmaceutical Council and Health & Care Professions Council all of whom have an overall high standard of reporting, detailing actions taken following disclosures and the regulatory impact of those disclosures on the regulator.
The Charity Commission for England and Wales (CCEW) saw almost double the number of reports in 2020-21 compared to the previous year – rising from 247 to 431, a 75% increase. The primary issues raised between 2020-2021 were governance (32%), safeguarding (29%) and financial management concerns (28%). Protect launched its freephone line with the Charity Commission three years ago with the aim of providing advice and support to charity workers and we have handled over 1500 charity sector cases since. The Charity Commission’s reporting is highly informative, providing a breakdown of the type of person contacting them (e.g. employee, trustee or volunteer etc) details of actions taken and the outcome that the Charity Commission had on the situation.
Health and Safety
The Health and Safety Executive (HSE) saw 2.6 times more reports in 2020-21, having previously consistently received between 3,000 and 4,000, jumping to 9,591 – most likely linked to concerns regarding Covid-19 and the workplace. The HSE detail no specific actions taken or any regulatory impact.
The Office of Rail and Road (ORR) saw a big decrease in reports, from 150 and 214 in the years 2017/18 and 2018/19 respectively, to 33 reports in 2019/20 and 44 in 2020/21. The decrease is most likely explained by the reduction in travel during the pandemic. The subsequent increase of 25% is attributed to concerns regarding the implementation of Covid-19 working practices, staff treatment, fatigue, non-reporting of incidents, bullying and improper working practices. The ORR provide a detailed outline of the types of cases received and how they deal with anonymity but produced generic comments on action taken and the regulatory impact of disclosures.
A worrying quirk of the reporting duties is how little information there is on the whistleblowing in the education sector. Ofsted, the highest profile of the education regulators, are required to report only on disclosures about their role in overseeing children’s social care rather than schools, and the Department for Education are exempt from the reporting duty. Ofsted have seen a steady increase in disclosures, with 378 received in 2021-2 . However, the level of disclosures reported is likely to be a lot higher than this as they are not required to publish data on disclosures they receive from schools. This is an oversight in the reporting duty and needs to be rectified if we are to get a true picture of whistleblowing in education.
The other education regulators have few disclosures: Ofqual has seen a doubling of disclosures in two years – from 35 in 2019/20, to 76 in 2021-2. Qualification Wales, however, received only two disclosures in 2020-1, one of which it referred to the awarding body, the other which had insufficient information to investigate.
Discrimination, Harassment and Equality
The Equality and Human Rights Commission (EHRC) became prescribed in 2019 and receives whistleblowing disclosures about compliance with legislation relating to equality and human rights. The EHRC can only use their legal powers to tackle issues that will advance their core aim or one of their top five priority aims. The EHRC saw a 360% rise in reports in 2020-21 compared to 2019-20, rising from 46 to 166. This increase could perhaps be linked to the UK’s increasing awareness of equality issues following the Black Lives Matter and #MeToo movements. Of the 166 disclosures, around 32% were either outside of their remit or did not include enough information to make a full assessment. Disappointingly, of the 113 remaining, around 89% of these did not merit further action as the issues did not align with their priorities or criteria. 87% of issues received related to discrimination or human rights breaches in the treatment of staff, 11% related to discrimination or human rights breaches in the treatment of service users, customers or students, and in 2% it was unclear whether the issues related to treatment of staff or of service users, customers or students. There was no comment on regulatory impact of the disclosures.
Prescribed Persons Receiving a Surprisingly Low Number of Concerns
Across the reporting years, the Independent Office for Police Conduct has only received 11 qualifying disclosures which is surprising in light of the numerous police misconduct investigations that have received media scrutiny over the past few years. The Food Standards Agency (FSA) also reports low numbers; 60 (2017/18), 88 (2018/19) and 31 (2019/20). However, the FSA has seen a significant increase over the past couple of years with 158 in 2020/21 and 222 in 2021/22.
Additionally, given growing concerns over climate change, environmental damage and the risk of greenwashing, it is surprising and worrying that so few concerns are raised with the prescribed persons regulating these issues. The Environment Agency received just 66 across the four reporting years: and only 10 in 2020-21. These figures also demonstrate a significant decrease in the number of reports since 28 in the first reporting year. The Scottish Environment Protection Agency reports similarly low numbers, totalling 26 across the four years (although their numbers from 2020-21 may not be available due a cyberattack suffered in 2020).
At first glance, you could interpret the overall increase in the number of whistleblowing numbers as positively demonstrating that workers feel increasingly comfortable and confident in speaking to prescribed persons. However, numbers alone are not sufficient to measure whether the reporting duty has fulfilled the aim of increasing confidence among whistleblowers, and there remains a lack of consistency in reporting among regulators. The significant proportion of cases where limited or no action is taken, where concerns are yet to be assessed, or where there is a lack of detail published in terms of what, if any, action is taken, paints a picture that concerns are disappearing into a regulator’s bureaucratic system regardless of whether that is the case or not. A requirement that all regulators provide regular feedback to whistleblowers (as we recommend in our draft Bill) might address whistleblower’s fears that their concerns are being ignored.
Read our Annual Whistleblowing Reports: Best Practice Guide here.