Whistle-blowing: a duty to disclose

Whistle-blowing has a vital role in making government more accountable.  Peter Cheney explains how staff should be protected.

The mishandling of accountant Linda Ford’s complaint in the Fire Service has raised questions about whether whistle-blowing is worthwhile, but the case also shows the importance of staff speaking out to expose wrongdoing in the public sector.

Ford had written to the Department of Health, Social Services and Public Safety’s Permanent Secretary, Andrew McCormick, to report unauthorised pay rises and a failure to pay corporation tax.  She was suspended by the service after making her complaint and later received £20,000 in compensation from an industrial tribunal.  McCormick has apologised in public and in writing for failing to act on the complaint.

The law on whistle-blowing (making a disclosure in the public interest) is set out in the Public Interest Disclosure (Northern Ireland) Order 1998 and applies to all employees.  Its aim is to protect whistle-blowers from ‘detriment’ e.g. denial of promotion or training, unfair dismissal.

To be protected under the law, the disclosed information must tend to show that one or more of the following is either happening now, took place in the past, or is likely to happen in the future:
•    a criminal offence (including bribery);
•    a breach of a legal obligation;
•    a danger to health and safety;
•    a danger to the environment; or
•    deliberate cover-ups of information about the above situations.

The worker must:
•    make the disclosure in good faith;
•    reasonably believe that information (and any allegation made) is substantially true; and
•    not act for personal gain.

A worker acting in that way is still protected if no wrongdoing is found.  The most important thing is that he or she has the freedom to speak out in the first place.
As explained, a disclosure does not have a time limit.  It also has no geographic limit and can expose wrongdoing taking place anywhere in the UK, Ireland or indeed overseas.  However, employees are not protected if making the disclosure breaks the law or breaks legal privilege.

If an employee decides that informing an employer would be counter-productive, he or she can take their information to a ‘prescribed person’ i.e. usually a regulator or the government department responsible for that policy area.  A full list of prescribed persons is outlined in a guide published by the Department for Employment and Learning: www.delni.gov.uk/public-interest-disclosure-guidance

Disclosures can also be made to a legal adviser or, ultimately, a Minister.  As agendaNi reported in May, Environment Minister Alex Attwood wants to hear about “any allegation of corruption or other attempts to irregularly or unreasonably influence planning decisions.”  He stressed that people who use whistle-blowing will be protected.

In a message to all his staff in March, Minister Edwin Poots said that he expected them to act on “any genuine concerns” they had about any aspect of an organisation’s work or their colleagues.  He also made clear that someone making a disclosure should avoid passing on private or confidential information: an especially important factor in health and social care.

Cynical observers of the Ford case could argue that whistle-blowing does not work, but it is now achieving results.  Linda Ford initially made an in-house complaint before contacting the Permanent Secretary, the Audit Office and the Assembly’s Public Accounts Committee.  The resulting investigation by the department has uncovered “a culture of fear and mistrust” in the Fire Service and “a lack of strategic direction and guidance from the very top”.

Andrew McCormick has affirmed that senior civil servants have to be “consistently and emphatically in favour of whistle-blowing.”  In addition, Edwin Poots has stated that if staff “think they can do what they wish within an organisation, they’ll find that that’s not the case and we won’t tolerate it.”