1 Supporting and encouraging whistleblowers
1. On the basis of a report by the Comptroller and
Auditor General, we took evidence in March 2014 from the Department
of Health, the Department for Education, the Ministry of Defence
and HM Revenue & Customs.[1]
We also took evidence in March 2014 from Public Concern at Work,
and from Kay Sheldon, a whistleblower who raised concerns about
the Care Quality Commission in her capacity as a member of the
board. We then took further evidence in May 2014 from the Department
of Health.
2. Whistleblowing is when people raise a concern
about wrongdoing, poor practice or malpractice in the workplace
that has a public interest aspect to it. Concerns can range from
social care and clinical failings, to financial mismanagement
and environmental damage. Whistleblowing is important to protect
and reassure the workforce, and to maintain a healthy working
culture and efficient organisation. Whistleblowing has become
much more high profile in recent years, as well-publicised cases
such as Hillsborough and the Mid Staffordshire NHS Foundation
Trust inquiry have shown.[2]
3. Whistleblowers are often motivated by feelings
of what is fair or proper: they have a strong sense that something
they have seen or heard is not right, ethical or compliant with
workplace regulations. But blowing the whistle can make people
vulnerable, so organisations must have clear, comprehensive and
accessible policies and arrangements to support and reassure employees,
at what is likely to be an extremely stressful time for them.
These policies should be reinforced by a culture of transparency
and openness so that employees trust the system and are confident
in raising concerns.[3]
4. Public Concern at Work told us, however, that
many employees feared reprisal if they blew the whistle, and they
were often concerned that their employer would not protect them
against retaliation or victimisation.[4]
The Ministry of Defence, for example, acknowledged that it was
very disappointing that 52% of employees who had been concerned
about serious wrongdoing within the past two years had not raised
their concerns, and also that only 40% thought that they would
not suffer reprisals if they did raise a concern. In the Department
of Health, only 54% of employees said they would feel confident
in speaking up about a concern.[5]
5. Whistleblowers' fears of reprisal are often justified,
and such experiences are likely to deter other employees from
raising a concern. For example, we heard from Kay Sheldon, a whistleblower
who is a board member of the Care Quality Commission, about her
shocking treatment. She described to us how she had been victimised
by senior managers after she had raised concerns. She said that
she felt that: "What they wanted to do was, essentially,
get rid of me and discredit me", rather than addressing the
concerns she had raised.[6]
6. We asked Una O'Brien, Permanent Secretary at the
Department of Health about attempts to remove Kay Sheldon from
the board of the Care Quality Commission following her whistleblowing.
She stated that Dame Jo Williams [then Chair of the Care Quality
Commission] had written to the Secretary of State in November
2011asking him to remove Kay Sheldon from the board of the Care
Quality Commission.[7]
7. Una O'Brien's evidence also set out that the Secretary
of State sought advice and consulted the Cabinet Office, after
which he appointed Gill Rider (at that time, President of the
Chartered Institute of Personnel and Development) to undertake
an independent review, and to provide him with advice on handling
the concerns raised by Kay Sheldon. Una O'Brien stated that Gill
Rider was asked to establish the facts around Kay Sheldon's concerns
about the board of the Care Quality Commission and to review how
the matters had been handled. The evidence considered by Gill
Rider included meetings with all of the members of the board.[8]
8. Una O'Brien's evidence further stated that in
March 2012, Gill Rider submitted her report to the Secretary of
State, who also met and requested further information from Kay
Sheldon and subsequently reached the conclusion not to remove
her from the board.[9]
9. Kay Sheldon told us that the Gill Rider review:
"…was not independent… Frankly, it was a deliberate
hatchet job; there is no other way to describe it."[10]
Kay Sheldon said to us: "I met with the person doing the
review for about an hour, and I was told it was going to report
within 10 days, but it didn't. It dragged on. I didn't hear anything
else, but when I got my personal data, I found out that the person
doing the review, the CQC and the Department of Health were in
quite a lot of contact. I was completely out of it. I didn't have
a voice."[11]
10. Kay Sheldon also told us that no disciplinary
action had been taken against any of the people involved in her
mistreatment and that she was surprised that they were still in
their posts, despite her concerns having been vindicated subsequently
by an independent review.[12]
We asked Una O'Brien about what has happened to people who had
made threats and perpetrated bullying against whistleblowers,
and whether any disciplinary action had ever been taken against
people for these actions. Una O'Brien was unable to provide any
information as the Department did not collect it from NHS employers.
Una O'Brien said that there were such cases locally, and accepted
that the Department had not brought these to the fore, or made
them visible in the public domain. Una O'Brien agreed to consider
whether this could be done.[13]
11. We heard from Public Concern at Work and other
departments that departments have not effectively dealt with employees
who victimise whistleblowers.[14]
Public Concern at Work told us that it was rare for someone who
has victimised a whistleblower to be sanctioned, and that it was
only aware of one case where this had happened, which was at the
Mid Staffordshire NHS Foundation Trust.
The other departments were also unable
to give us any concrete examples of where they had taken disciplinary
proceedings against an employee who had victimised a whistleblower.[15]
12. If reprisals do occur, whistleblowers should
reasonably be able to expect that their employer would provide
them with the extra care and support that they need. However,
Kay Sheldon told us that her employer had initially denied her
legal help after the Secretary of State for Health had told her
that she might have met the statutory grounds for termination
of her appointment on the board of the Care Quality Commission.
Kay Sheldon told us that she sought legal advice herself, and
that this considered the Gill Rider review was unfair and unlawful.
She presented the advice to the Secretary of State for Health
and told us that: "I agreed not to sue Andrew Lansley and
he agreed not to remove me".[16]
Both HM Revenue & Customs and the Department of Health acknowledged
that they did not have an earmarked budget to support whistleblowers,
although both claimed that they had some resources which they
could make available to cover costs such as legal advice.[17]
13. Whistleblowers are not always clear with whom
they should raise a concern.[18]
For example, the 2013 annual civil service survey found that although
89% of respondents were aware of the civil service code, over
a third did not know how to raise a concern under the code.[19]
A survey of employees in the Ministry of Defence found that 57%
of respondents did not know that a whistleblowing policy existed.
The Ministry of Defence told us that, in response, it was introducing
a new policy that will clearly set out all reporting routes. It
also said that it planned to send the policy to all employees,
and to publicise its whistleblowing arrangements through an awareness
week and training programmes.[20]
14. The Department for Education operates in a system
with many different entities, ranging from arm's-length bodies
and regulators, to schools and academies, each of which has distinct
areas of responsibility. The NAO found that reporting routes were
not consistent in the whistleblowing policies that it examined
from the education sector, and that employees could raise their
concerns with many different internal and external bodies. The
NAO concluded that this could result in fragmented intelligence,
particularly if the intelligence that was forthcoming was not
shared.[21] The Department
for Education acknowledged that it was often unclear to people
how they should raise an issue, and that at the moment it did
not have a route map for people, explaining how they should raise
concerns.[22]
15. It is also often unclear to whistleblowers how
departments have addressed their concerns once these have been
raised. Kay Sheldon told us that she had been asked not to attend
board meetings. She described how she was not given sufficient
information about the Gill Rider review, had a one hour interview
only with Gill Rider, and was not told what other people had said
to Gill Rider. Kay Sheldon found that this prevented her from
responding effectively to comments made about her.[23]
16. Kay Sheldon told us that "a secret mental
health report" had been carried out about her, and that an
issue about her mental health had been raised by the then Chair
of the Care Quality Commission, Jo Williams. She also told us
that Una O'Brien at the Department of Health was involved, although
she did not know the extent of this involvement. Kay Sheldon told
us that Una O'Brien's office had recommended that a private occupational
health company, Medigold, carry out the assessment of her mental
health.[24]
17. Kay Sheldon said that Jo Williams had told her
that she had been referred to Medigold. She told us that she had
only a ten minute conversation with Medigold and that she later
found out that they had prepared a three page letter about her,
stating she: "probably had paranoid schizophrenia, and that…my
medical notes should be obtained in confidence."[25]
18. We asked Una O'Brien about her involvement in
a review of Kay Sheldon's mental health. Una O'Brien stated that
Jo Williams had raised with her a request from Kay Sheldon for
her needs to be assessed under the Equality Act 2010. Una O'Brien
stated that she had told Jo Williams that she would turn to the
occupational health service if approached with such a request.
This service was provided by Medigold at the Department of Health
and it was one of the providers at the Care Quality Commission.
Una O'Brien told us: "I did not recommend them [Medigold]
as such. This was just a conversation and a suggestion".
19. We asked Una O'Brien whether she had received
the report on Kay Sheldon's mental health. Una O'Brien told us
that she had received, but not examined, a medical assessment
of Kay Sheldon's mental health, and that Gill Rider had not received
the assessment. Una O'Brien considered that the medical assessment
was not relevant to Gill Rider's review. When Una O'Brien learnt
that the diagnosis on Kay Sheldon from the medical assessment
was that she was suffering from paranoid schizophrenia, Una O'Brien
told us that she was shocked and that she did not consider it
a proper diagnosis. Una O'Brien also told us that no-one in the
Department of Health had seen Kay Sheldon's personal medical records,
that Gill Rider did not see them either, but that she did not
know if anyone at the Care Quality Commission had seen them.
20. Research by Public Concern at Work showed that
institutional silence is a common reaction to whistleblowers,
with 60% of the whistleblowers it surveyed receiving no feedback
from management in response to their concerns.[26]
This inaction affects employees' confidence in how departments
will handle concerns. In the 2013 annual civil service survey,
only 67% of respondents were confident that if they raised a concern
it would be investigated properly. Cases can be 'lost' from a
whistleblower's perspective, which may result in employees feeling
less motivated to come forward when they feel that things have
not changed in the past. [27]
21. Public Concern at Work told us that publishing
intelligence on whistleblowing cases received and outcomes is
one means by which departments can increase their employees' confidence
in arrangements, as it enables employees to see how organisations
have dealt with issues.[28]
Departments agreed that publicising the outcomes of whistleblowing
cases is important, but we heard about only limited initiatives
to do so. The NAO found that only HM Revenue & Customs of
the departments it reviewed had published the outcomes to its
cases, but even this only included criminal cases.[29]
The Ministry of Defence told us that it recognised "the importance
of explaining to people where whistleblowers have whistleblown
and what we have done about it", and as part of its new whistleblowing
policy it intended to publicise how this was being implemented.
And the Department for Education told us that the Education Funding
Agency publishes on its website redacted reports, following a
whistleblowing investigation.[30]
1 C&AG's Report, Making a whistleblowing policy
work, Session 2013-14, HC 1152, 18 March 2014 Back
2
C&AG's Report, paras 1-2 Back
3
C&AG's Report, paras 1.1, 1.4 Back
4
Q 1 Back
5
Qq 41, 138 These percentages refer to employees who responded
to the survey. Back
6
Qq 10, 15-19 Back
7
Q 245 Back
8
Q 245 Back
9
Q255-6 Back
10
Q10 Back
11
Q10 Back
12
Qq 10, 19 Back
13
Qq 200-201 Back
14
Qq 3, 10, 14-19, 77, 89-90, 114 Back
15
Qq 2-5, 99-100, 110, 112, 141 Back
16
Qq 25, 32 Back
17
Qq 146, 150-151 Back
18
Qq 10; C&AG's Report, paras 3.2, 3.9 Back
19
C&AG's Report, para 4.5 Back
20
Q 139 Back
21
C&AG's Report, , paras 3.12, 3.14 and Figures 11, 15 Back
22
Q 66 Back
23
Q10 Back
24
Qq 10, 32-38 Back
25
Q38 Back
26
Q1; C&AG's Report, para 3.3 Back
27
C&AG's Report, paras 4.13, 4.18 Back
28
Q 8 Back
29
C&AG's Report, para 4.18 Back
30
Qq 55, 139 Back
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