The Public Interest Disclosure Act 1998 (PIDA) provides legal redress, via Employment Tribunal, to workers who suffer dismissal or detriment (eg bullying, harassment, victimisation) for raising legitimate concerns in the public interest about malpractice or wrongdoing at work. This includes the reporting of fraud, bribery and corruption. PIDA is known as the UK's Whistleblower Law. You must meet the tests as laid down in the legislation in order to gain PIDA protection.
Freedom to speak out and do the right thing without fear is the way we want things to be done at our Trust. The Trust acknowledges that it may be difficult for someone to raise concerns if it involves someone senior to them, but we emphasise that we are committed to equality and confidentiality in the process. It is in the best interests of us all that we learn about problems internally at the earliest opportunity, so that we can work to reduce or remove the problem, and thank staff who speak up. The Board and Senior Management Team will safeguard individuals, from dismissal or detriment, who raise genuine concerns covered by the Trust's Freedom to Speak Up Policy. Members of the Board will not tolerate unacceptable behaviour being subjected towards anyone raising genuine concerns; anyone found doing so will be sanctioned according to appropriate Trust policy and procedures, which could lead to dismissal under the Trust's disciplinary proceedings.
Also, importantly, it must be understood that co-workers who subject genuine whistleblowers to any disadvantage for blowing the whistle can be held personally liable for their own actions under PIDA law. It is in the interests of all organisations to reiterate this to their staff. If victimisation has taken place by their staff, the employer can also be held legally responsible (known as 'vicarious liability') for the actions of their staff unless the employer can show that they took proactive reasonable steps to prevent victimisation. Our Trust is committed to taking proactive steps to prevent victimisation and protect its workforce – this includes having good freedom to speak up policy and procedures in place, backed up by any necessary training and an effective communication strategy.
As with zero tolerance to victimisation of whistleblowers by co-workers and by the Trust itself, Trust Board will not tolerate the making of deliberately untrue whistleblowing allegations. Any staff member who is found to have done so will be subject to disciplinary action. A worker who deliberately and knowingly raises a false whistleblowing concern is not legally protected under PIDA. This means that the person may be held to account for their actions and might lawfully be subject to an appropriate disciplinary sanction by their employer, such as dismissal.
The NHS Constitution is in place to safeguard the principles and values of the NHS. It sets out rights to which patients, public and staff are entitled, and pledges that the NHS is committed to achieve. It is supported by a Handbook which explains the NHS Constitution in detail. All NHS bodies, and private and third party sector providers supplying NHS services, are required by law to take the NHS Constitution into account in their decisions and actions.
To highlight and commit to the importance of whistleblowing, the NHS Constitution for England was amended in 2012 to include:
- An expectation that staff should raise concerns at the earliest opportunity.
- A pledge that NHS organisations should support staff when raising concerns by ensuring their concerns are fully investigated and that there is someone independent, outside of their team, to speak to.
- Clarity around the existing legal right for staff to raise concerns about safety, malpractice or other wrong doing without suffering any detriment.
In response to the Francis Report, the revised NHS Constitution for England in 2013 saw the introduction of the new 'Duty of Candour'. The Duty is for the NHS and its staff to make sure that they tell patients, families, carers, and/or representatives if something goes wrong with their care. The Duty of Candour is about being honest and truthful and making sure that people are told what went wrong and why, and apologising and explaining what will be done to help stop it happening again. The Duty of Candour has also been incorporated as a contractual requirement into the NHS Standard Contract. Obstructing colleagues in being candid will be a breach of professional codes. It is important that NHS organisations and staff are aware of and understand their responsibilities in relation to the Duty of Candour.
The 2013 NHS Terms and Conditions of Service amendments introduced 'Section 21: Right to raise concerns in the public interest (whistleblowing)', which states:
- All employees working in the NHS have a contractual right and a duty to raise genuine concerns they have with their employer about malpractice, patient safety, financial impropriety or any other serious risks they consider to be in the public interest.
The NHS Constitution and accompanying Handbook, information in relation to the Duty of Candour, and the NHS Terms and Conditions of Service, are all freely available on the internet. Your Line Manager or HR department can provide you with hard copies on request.
Every manager has a duty to ensure that staff are easily able to express their concerns, and that concerns are dealt with thoroughly, fairly, and expeditiously. Managers should make themselves visible and create a feeling of openness in the workplace to help staff feel comfortable and confident to raise concerns with them at the earliest possible opportunity.