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.