There is a law to protect whistle blowers but it is less protective, if, as a last resort, they go to the press. Elinor Harbridge reports.
Here’s a question to ponder. Would we all be thinking about the 3,000-plus people locked up in so called assessment and treatment units if the nurse at Winterbourne View had not blown the whistle on the scandalous conditions there? Maybe we would but the chances are we would not.
What qualities does a whistle blower possess? In the case of Terry Bryan, the nurse in question, as well as courage and a strong moral code, what distinguishes him from the 15 previous complainants about conditions at the hospital was his determination to get something done.
Bryan was so appalled at the prevailing culture of people being herded about together without any individual attention that he wrote a four-page email to his line manager.
His complaints were sent to ‘safeguarding’ but as no action was taken, Bryan made several attempts himself to alert the Care Quality Commission. As we know, his complaints were ignored. After nearly six months of inaction, Bryan felt compelled to share his story with the Panorama team.
When he saw the footage, Bryan says he was shocked. The abuse caught by Panorama’s cameras was much worse than anything he had witnessed.
In an interview with Dimensions (still on YouTube) Bryan said: “If you know in your heart of hearts something is wrong, you must tell someone outside who can do something about it”.
Are whistle blowers protected by the law? Bryan knew and understood his legal position and was careful to follow the guidelines. But the law does not protect whistle blowers who go to the press from bullying and harassment, which the phenomenon of social media has made considerably more virulent.
The law is clear on who is protected, which disclosures qualify and which are ‘protected’. It is less clear about how individuals can be protected. It was amended in 2013 to provide stronger protection for employers from malicious attacks.
The law states that you are protected from victimisation if you are a worker, revealing information of the right type by making what is known as a ‘qualifying disclosure’, revealing it to the right person, and in the right way, or making it a ‘protected disclosure‘.
As well as employees the term ‘worker’ includes the self-employed, agency workers and people who aren’t employed but are in training with employers.
Qualifying disclosures
To be protected, you need to reasonably believe that malpractice in the workplace is happening, has happened or will happen. You also need to make your disclosure in the right way. The types of malpractice the law covers are: criminal offences, failure to comply with a legal obligation, miscarriages of justice, threats to people’s health and safety and damage to the environment.
The law also covers a deliberate attempt to cover up any of these. However, you may not be protected if you break another law in blowing the whistle; for example, if you have signed the Official Secrets Act as part of your contract.
Protected disclosures
For your disclosure to be protected by the law, you must make it to the right person and in the right way. If you make a qualifying disclosure in good faith to your employer, or through procedures which your employer has authorised, the law protects you.
For a disclosure to a ‘prescribed person’ to be protected, you must fulfil the following requirements:
• make the disclosure in good faith
• reasonably believe the information is substantially true
• reasonably believe you are making it to the right ‘prescribed person’.
In certain circumstances you can also make disclosures to others. These include your legal adviser, a government minister, if you’re a public sector employee, more generally (to a professional standards body, for example, or in extreme circumstances, the media).
The rules covering disclosures ‘more generally’ are extremely strict – you must not, for example, be acting for personal gain. Anything you say to a legal adviser to get advice is automatically protected.
The majority of whistle blowers who go to the press do so as a last resort. The danger for anyone going public with complaints was well illustrated by the whistle blower at North Stafford Hospital. Julie Bailey’s 86-year old mother died after she was ‘dropped’ by a nurse, the culmination of six years of neglect. When Miss Bailey spoke out about conditions at the hospital she became the victim of a hate campaign.
Uncovering unpleasant facts has repercussions. Staff and communities can feel tainted. Some nurses have still not forgiven Terry Bryan.
The truth is not always welcome. We owe these courageous individuals something better.
There is a helpline for whistle blowers:08000 724 725 and a useful publication: Raising concerns at work. Email enquiries@wbhelpline.org.uk
