Tony Young on a Lords challenge that has forced Ministers to think again on whistleblowing legislation
Shocking as they were, the revelations about a number of public institutions over the last two years – on phone hacking, the Savile allegations and the Mid Staffordshire NHS Trust – left you wondering why, in all the time this was going on, nobody noticed? And why did no one stand up and blow the whistle on what was taking place?
Clearly, something has failed at a deep cultural level if individuals don’t feel able and supported enough to speak out against wrongdoing of such a serious nature. And yet the government has been preparing legislative provisions that would have sent just the opposite signal to individuals thinking of speaking out.
Clause 15 of the Enterprise & Regulatory Reform (ERR) Bill, when introduced, would have created a double barrier to obtaining protection under the Public Interest Disclosure Act from action by an employer against employees who have blown the whistle on bad practice.
Robert Francis QC’s report into Mid Staffs found that greater action is needed to make employees feel supported in raising concerns, rather than isolated and vulnerable, like nurse Helene Donnelly, described as “a most impressive and courageous witness” but who was “visibly still suffering from the effects of what she had experienced while employed by the Trust”.
This is why Labour called for the law to be changed, through an amendment to the Bill – to make employers responsible, not simply for their own actions towards whistleblowers but for the actions of their employees as well.
When this proposal was debated in Committee, Ministers argued that the vicarious liability of employers wasn’t necessary because whistleblowers would be protected by current harassment legislation. This, of course, misses the point. Regardless of any charges brought against an individual perpetrator, if the employer doesn’t also face liability, they will have no real incentive to prevent such conduct within their organisation.
In Helene Donnelly’s case, the colleagues against whom she complained returned to the department where she worked, which led to bullying and threats of physical violence against her. This got so bad that she eventually left the hospital and the profession.
After criticism from all sides, the government has finally seen sense. Today therefore, on the first day of Report on the ERR Bill, will see Ministers accept the need for a change in the law, removing the test of good faith that currently exists within the Act and leaving public interest as the only relevant test for whether a disclosure should qualify for protection.
Time and again, institutions fail to provide the basic duty of care to those they are responsible for, but the new protections should go some way towards boosting the confidence of brave individuals like Helene Donnelly who do speak up rather than turn a blind eye.
Lord Tony Young of Norwood Green is frontbench Labour Peer in the Lords
Published 26th February 2013