Sir Robert Francis, who led the inquiry into a series of patient deaths at Stafford Hospital between 2005 and 2008, has claimed NHS whistleblowers need stronger legal protection. Although there have been attempts to encourage an open culture, many who come forward still suffer adverse treatment and even punishment, when they choose to speak-up.
The Stafford Hospital inquiry was established to investigate hundreds of patient deaths that had occurred more than a decade ago. Following the inquiry, Sir Robert stated he was not 100% confident that whistleblowing failures would not happen again. In a statement to BBC News on the important role of company culture, Sir Robert aptly and succinctly stated:
“I think the way to stop it is to think all the time about the culture and make sure you’ve got an open culture, a supportive one and one that treats the patient first by listening to the staff’s concerns about them. Principally, it is a matter of the leadership of the organisations,” he says, “because the leadership, by which I mean the chief executive, the board, have to buy into and understand what this is all about”.
Further, the Council Chair of the Doctors’ Union, Phil Banfield, been vocal in the recent press coverage of the NHS whistleblowing findings. Mr Banfield said: “Someone who raises concerns is automatically labelled a troublemaker. We have an NHS that operates in a culture of fear and blame. That has to stop because we should be welcoming concerns, we should be investigating when things are not right”.
Such commentary and findings clearly highlight that beyond the role of policy, internal governance and legislation, ensuring that company culture is supportive of whistleblowers is paramount, with the tone (usually always) being set from the top.
The UK’s whistleblowing regime
Unlike the EU, the UK’s legislative regime for whistleblower protection is somewhat patchwork. The current legal framework is governed by case law and The Employment Rights Act 1996 (ERA 1996), as amended by the Public Interest Disclosure Act 1998 (PIDA 1998) and as further amended by the Enterprise and Regulatory Reform Act 2016. Specific legal provisions also apply to individuals working in the national health services (Part 5A ERA 1996).
In the UK, the disclosure must relate to one of the subject matters defined as a “qualifying disclosure”. In addition, the worker must follow a set procedure when making a disclosure and stricter regimes are set if the disclosure is made to someone other than the employer. To qualify for protection a disclosure must also satisfy the public interest test.
An employee is also entitled not to suffer detriment for making a protected disclosure, this will also include protection where the identity of the employee is released and, as a result, they face detrimental treatment.
Aside from certain regulated sectors (For example: FCA regulated entities), unlike the EU, companies in the UK are not under an obligation to establish adequate reporting channels. Generally, this does not encourage the implementation of a “Speak-Up” culture and as a result, also increases the likelihood of discrimination, retaliation and victimization within a corporate environment.
Most recently, in 2022, Baroness Kramer introduced the Protection of Whistleblowing Bill as a Private Members’ Bill, starting in the House of Lords. The Bill seeks to establish an Office of the Whistleblower to protect whistleblowers and to create offences relating to the treatment of whistleblowers and handing of whistleblowing cases and to repeal the PIDA 1998. The second reading took place on 2 December 2022, with the Committee Stage yet to be announced.
Our practical insight into Speak-Up culture
The intersection of compliance and culture is something which many organisations struggle to get to grips with, especially in global companies or historic and established organisations. In our experience, we have found that often companies approach the matter in the wrong way as they seek quick results, ultimately rushing what is a complex and nuanced task: building a “Speak-Up” culture.
In order to be effective, a cultural change process must be initiated by senior management. Academics and practitioners often talk about “senior management buy-in” but, in practice, driving cultural change first requires the buy-in of the employees, and once you have your employee’s trust then the process can really flourish.
During a cultural change process, the role of compliance should be to:
- Formalize any policy decisions using the appropriate wording, tone and formats.
- Contributing to and safeguarding the feedback process between employees and senior management in respect of policies and cultural change.
- Safeguard the progress made by achieving consistent outcomes in the application of policies and the disciplinary process.
