The 23 June was World Whistle-blower’s day, so it seemed timely to reflect on the subject, in particular a reminder of the law, updates to relevant guidance, the CQC’s approach to whistleblowing and best practice for providers.
Law
Whistleblowing legislation was implemented 25 years ago, through the Public Interest Disclosure Act 1998 (“PIDA”) being incorporated into the Employment Rights Act 1996. The term ‘whistleblower’ may be used to describe people who make a ‘qualifying disclosure’ about a concern at work; a concern about malpractice, wrongdoing or possible illegality, which harms, or creates a risk of harm, to people who use a service, colleagues or the wider public.
PIDA affords, most people, protection against unfair dismissal and/or detriment (being treated worse than before or having their situation made worse) if they make a qualifying disclosure. This includes workers, employees, agency workers and apprentices. People are still protected even if they no longer work for the employer they’re making a disclosure about. Whistleblowing is different to a complaint or a grievance and usually refers to situations where a worker raises a concern about something they have witnessed at their workplace rather than something that has happened to them.
Parliament has recognised that the current regime requires modernisation and has seen the passage of private members’ bills which seek to create a new independent Whistleblowing Commission to set, monitor and enforce standards and seek to establish an independent Office of the Whistleblower. On 27 March 2023, the UK government launched a review of the current whistleblowing framework which is expected to conclude in autumn 2023. The review seeks evidence on the effectiveness of the current regime in meeting its original objectives.
Guidance
The Advisory, Conciliation and Arbitration Service (“ACAS”) has recently published new guidance for employers and employees on speaking up at work (“Whistleblowing in the workplace”). Nothing in the guidance should come as a surprise to providers. It covers what disclosures are protected as whistleblowing, what should be included in a whistleblowing policy and how the workplace should respond to whistleblowing. The guidance highlights that employers should take whistleblowing concerns seriously and ensure that whistleblowers are appropriately protected against any detriment.
The revised national Freedom to Speak Up policy for the NHS, published by NHS England, echoes ACAS’s guidance. All NHS trusts and foundation trust boards have been asked to update their local policy to reflect this policy by 31 January 2024. It is wise to also reflect ACAS’s guidance as Employment Tribunals may take guidance into account when determining whistleblowing claims brought. That said, Sir Robert Francis’ report into Speak Up promotes a non-legalistic approach which involves acknowledging and thanking the person for raising their concern as well as providing feedback when their concern has been investigated. The aim is to foster a positive workplace culture, which in turn enhances staff retention and increases regulatory compliance.
Care Quality Commission
The health and social care regulator, the Care Quality Commission (“CQC”) is a signatory to the NHS ‘Speaking Up Charter’ and “aims to develop a culture that provides for an environment where people feel able to raise concerns, be they staff, users of health and social care services, their relatives, or anyone else”.
A qualifying disclosure can be made to a ‘prescribed body’, such as a regulator like the CQC. The CQC will log it and check whether it adds to existing concerns about a service or whether it is a new concern. All concerns are reviewed by the CQC inspector for a service. The inspector will consider the information when monitoring the provider’s compliance with the fundamental standards of quality and safety. This information will be used by the CQC to decide whether to urgently inspect a service. A provider may also receive, what at first appears to be random requests for information from the inspector for the service, and later learn that they relate to concerns raised by the whistle-blower. It is important to seek legal advice as early as possible. Lawyers can identify whether there is an obligation to respond to these requests, the amount of information a provider is required to share, and any ‘red-flags’ in the information being submitted in response.
The person may also raise their concerns with the local authority/council as well as the police. Likewise, when the CQC receives a whistleblowing concern it may notify another regulator, the local authority/council and the police. If there is possible harm or abuse the local authority/council will investigate the concerns under their safeguarding procedure and the police could launch a criminal investigation if the concern is about possible illegal activity. The CQC inspector for the service will monitor the progress and outcome of these investigations. Ridouts has seen first-hand, the knock-on effect of a whistleblowing and is experienced in dealing with the various investigations that are triggered including safeguarding investigations and CQC inspections and enforcement action. Often our job is to remind local authorities and the CQC, that they have a duty to make proportionate decisions regarding whistleblowing concerns.
Best Practice
As a conscientious service provider, create an atmosphere where workers feel able to report concerns, thoroughly investigate and address such concerns within the service and provide feedback to the person. A good whistleblowing policy is an important tool in creating this atmosphere of transparency. Your policy should identify that workers can go outside their normal line management or accountability arrangements to raise concerns, likewise they can go outside of the organisation. Also, it should make workers aware of their rights under PIDA. In conjunction with a comprehensive whistleblowing policy, an open-door policy may encourage workers to raise concerns internally in the first instance.
Whistleblowing makes up a large proportion of triggers leading to a CQC inspection. Furthermore, breaches of regulations found during an inspection are likely impact a service’s rating as well as lead to enforcement action. Therefore, it is important that providers are complying with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”), in particular Regulation 13 which requires providers to have systems and processes in place to prevent abuse and to investigate immediately upon becoming aware of any allegation or evidence of abuse; and Regulation 18 which requires providers to support staff. The CQC’s Guidance for Providers on Meeting the Regulations, should be read alongside the Regulations.
Speak Up, Not Shut Down
Providers may worry about the extent to which whistleblowing concerns can circulate and the potential repercussions. Stifling concerns allows potential wrongdoing to fester and become deep-rooted systematic issues whereas openness and transparency is a better environment to foster safe and high-quality care.
Ridouts is experienced in supporting providers with the potential repercussions from whistle blowing activity including challenging CQC inspections and enforcement action, safeguarding, prosecutions and more. Should you need support, we are here to help.
