Report

by the Comptroller
and Auditor General

The role of prescribed persons

HC 1033 Session 2014-15 27 February 2015

Our vision is to help the nation spend wisely.

Our public audit perspective helps Parliament hold government to account and improve public services.

The National Audit Office scrutinises public spending for Parliament and is independent of government. The Comptroller and Auditor General (C&AG), Sir Amyas Morse KCB, is an Officer of the House of Commons and leads the NAO, which employs some 820 employees. The C&AG certifies the accounts of all government departments and many other public sector bodies. He has statutory authority to examine and report to Parliament on whether departments and the bodies they fund have used their resources efficiently, effectively, and with economy. Our studies evaluate the value for money of public spending, nationally and locally. Our recommendations and reports on good practice help government improve public services, and our work led to audited savings of £1.1 billion in 2013.

Ordered by the House of Commons
to be printed on 26 February 2015

This report has been prepared under Section 6 of the National Audit Act 1983 for presentation to the House of Commons in accordance with Section 9 of the Act

Sir Amyas Morse KCB
Comptroller and Auditor General
National Audit Office

23 February 2015

In this report we examine the system of prescribed persons, looking at contacting a prescribed person; how a concern is handled; and how the system works for whistleblowers.

Investigations

We conduct investigations to establish the underlying facts in circumstances where concerns have been raised with us, or in response to intelligence that we have gathered through our wider work.

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10629 02/15 NAO

The National Audit Office study team consisted of:
David Boothby, Sarah Hipkiss and Sian Jones, under the direction of Paul Oliffe.

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Summary

1 Whistleblowing is when an employee raises a concern in the workplace that has a public interest aspect to it. Officially, this is called ‘making a disclosure in the public interest’. Concerns can relate to a range of issues, such as social care and clinical failings, financial mismanagement and environmental damage.

2 A whistleblower will usually approach their employer to raise a concern, but in some cases this will not be appropriate. Potential whistleblowers may be concerned that they will suffer some form of detriment from their employer or co-workers as a result of raising a concern. In such instances, an option for a whistleblower is to approach a prescribed person. A prescribed person is someone who is independent of the employee’s organisation, but usually has an authoritative relationship with the organisation, such as a regulatory or legislative body.

3 The Department for Business, Innovation & Skills (the Department) is responsible for the legislation that denotes prescribed persons and has begun to provide support to the network of prescribed persons. However, individual prescribed persons play an important role in ensuring that whistleblowing arrangements across government operate effectively and as intended.

Scope of this investigation

4 This is our third report on whistleblowing. In our first report, we evaluated the whistleblowing policies of 39 government bodies and highlighted good practice. In our second report we reviewed how a number of these policies translated into practice. In this report we examine the system of prescribed persons, looking at:

contacting a prescribed person;

how a concern is handled; and

how the system works for whistleblowers.

5 This report is aimed at the prescribed person community. It shows how prescribed persons can improve whistleblowing arrangements to better support and encourage whistleblowing and make better use of intelligence that they provide. Some prescribed persons choose not to categorise whistleblowing concerns from other types of concern, but our report is relevant to the handling of all concerns raised, of which whistleblowing is a subset.

6 The National Audit Office, as part of the prescribed person community, is committed to working alongside the Department and other prescribed persons to implement these recommendations, share knowledge and experience and embed a culture of continuous improvement.

7 As part of this report, we assessed the activity of 5 prescribed persons, as well as examining our own activities under the Comptroller and Auditor General’s role as a prescribed person. However, the findings and recommendations are for consideration by all prescribed persons. We also met a range of stakeholders and drew on the experience of whistleblowers directly.

Key findings

8 It is not clear what is expected from the prescribed persons community. The Department is responsible for the legislation that enables whistleblowers to claim compensation for detriment or dismissal. This legislation includes the list of prescribed persons. However, it does not specify the expectations of the role. For example, prescribed persons are not required to investigate every concern or to give feedback. The Department has recognised the need to act and has recently established a working group to develop best practice for prescribed persons.

9 Prescribed persons and the Department could do more to explain their remit. It is important that whistleblowers contact the correct prescribed person. Raising a concern with the ‘wrong’ prescribed person could leave the whistleblower less likely to be protected under the legislation. We assessed the websites of our sample of prescribed persons. We found overall that prescribed persons could do more to explain the roles and responsibilities to potential whistleblowers. Generally, staff working for a prescribed person do not know much about a prescribed person’s role and responsibilities.

10 Prescribed persons could do more to manage whistleblowers’ expectations. Of the 17 whistleblowers who spoke on the issue, 10 said their expectations were not met. This was most commonly because they believed the prescribed person did not investigate the concern they raised. A prescribed person’s decision of what action to take can be complex, depending on factors such as the prescribed person’s remit, the gravity of the concerns raised and other intelligence held about similar concerns. Prescribed persons could do more to explain how they make a decision on what further action to take. For example, websites could give more information on how concerns raised with them will be handled.

11 Prescribed persons are well prepared to handle concerns. We found our sample of prescribed persons had a central team in place for handling concerns. Each prescribed person had a defined set of procedures. The staff most likely to handle a concern had a good level of knowledge of the responsibilities associated with working for a prescribed person and had high levels of confidence in handling such concerns. Complaints about the way prescribed persons handle concerns are rare.

12 There is widespread activity to improve procedures. All prescribed persons we examined have recently carried out, or are in the process of carrying out, some review of their activity or guidance. Some of these reviews are routine assessments, others are a response to operational difficulties or previous weakness in performance. The Care Quality Commission is reviewing its procedures for handling whistleblowing as part of a wide-ranging review of its regulatory role. However, there are opportunities for sharing good practice across the system that are being missed.

13 Contacting a prescribed person does not in itself prevent the whistleblower suffering detriment or dismissal. While prescribed persons have an important role to play in encouraging and supporting whistleblowers, an employment tribunal determines whether an employee has suffered detriment. The Department understands that whistleblowers may feel the balance of power is in favour of the employer, given the financial resources available to an employer, and that the burden is on the whistleblower to enforce their legal rights. However, the Department’s view is that the law is designed to strike a balance between employer and employee. Public Concern at Work monitors and analyses all judgments and has concluded that, in its opinion, the legislation is too complex and not always interpreted consistently. The Whistleblowing Commission, established by Public Concern at Work, recommended that the law be reviewed and simplified.

14 Whistleblowers can experience negative outcomes but the government does not monitor how whistleblowers are treated. The government aims to ensure that whistleblowers are protected from suffering any detriment, but for individual whistleblowers all redress is retrospective. However, the government is unable to collect the data it needs to know how well it is achieving this. Of the 28 whistleblowers we spoke to, 9 were suspended or asked to leave, 3 were placed on extended leave and 3 remained in the organisation despite experiencing detriment. The remaining 13 left voluntarily or experienced no change in their status. In all, 10 took their concerns to an employment tribunal. Without robust and consistent information the Department will find it difficult to know how well the system is working. It will not be able to create a system where employers are held to account if an employee experiences detriment after raising a concern, which is essential to the integrity of the system and protection for future whistleblowers. Neither will it be able to understand where concerns are adequately acted on.

Concluding remarks

15 Our case study organisations have demonstrated a sound commitment to improving their procedures for handling concerns raised. This includes working with staff to raise awareness of the role of a prescribed person. Prescribed persons could do more to work together to share best practice and improve. However, it is fair to say that a gap remains between whistleblowers’ expectations and the actions of prescribed persons, and it is unlikely that it will ever be fully closed. Whistleblowers will, on occasions, continue to feel let down by the arrangements in place and this will not encourage potential whistleblowers to raise concerns with confidence.

16 The Department has an important role to play to support the prescribed persons community in implementing these actions. In addition, wider government has a role to play – in policy development, removing barriers, understanding the experience of whistleblowers and acting where detriment is suffered.

Recommendations

17 To provide more confidence in the system, prescribed persons should work together to:

a publish more information to help reassure potential whistleblowers. This information could include details of their procedures, factors considered when deciding whether to investigate and details of how whistleblowers’ information is used. Simply publishing volumes of cases alone will not be sufficient to increase confidence. However, it is important that prescribed persons publish examples of where the system has worked to improve confidence;

b manage whistleblowers’ expectations by clearly communicating the prescribed person’s powers, remit and responsibilities;

c explain to all staff who work for a prescribed person how they are expected to handle concerns; and

d share expectations of what good whistleblowing policies and procedures look like with the bodies they oversee.

18 The Department can support the network of prescribed persons by:

a ensuring that prescribed persons understand their responsibilities within the legislation;

b working with existing bodies to oversee and develop a set of good practice guidance. This should set out what a prescribed person should do in handling a concern and promoting their role. It should include procedures, remit, communication, guidance and a feedback mechanism to help reduce any gap in expectations;

c reviewing whether prescribed person status should apply to all bodies capable of handling a concern, and/or make the legislation apply to all cases involving detriment or dismissal; and

d working with other bodies to collect more accurate data on employment tribunal outcomes for whistleblower cases. It should also assess how well organisations are tackling the causes of the detriment or dismissal, including the sanctions applied to individuals. In assessing this, it should consider whether there is a need for greater powers to enforce sanctions on those who have been found to have subjected a whistleblower to detriment or dismissal.

Part One

Context

“Whistleblowing is an important source of intelligence to help government identify wrongdoing and risks to public service delivery. A positive approach to whistleblowing should exist wherever the taxpayer’s pound is spent.”

HC Committee of Public Accounts, Whistleblowing, Ninth Report of Session 2014-15, HC 593, August 2014

1.1 Whistleblowing occurs when an employee raises a concern about wrongdoing or malpractice in the workplace that has a public interest aspect to it.1 People may blow the whistle because they have a strong belief that something they have seen or heard in their workplace is not right, ethical or compliant with regulations. Whistleblowing is different from a personal complaint or grievance, which is a dispute about an employee’s own position. However, disclosures to prescribed persons can often be complex, spanning a range of issues and, particularly where whistleblowers have approached management in the first instance but have been dissatisfied with the response, the disclosure may be linked to a personal grievance.

The role of prescribed persons

1.2 A whistleblower will usually approach their employer to raise a concern. However, whistleblowers may experience little or no response to their concern (see ‘Whistleblower case studies: Getting no response from the employer’).

1.3 A potential whistleblower may also feel it is not appropriate for them to raise a concern with their employer. They may worry that they will suffer some form of detriment from their employer or co-workers as a result of raising an issue (see ‘Whistleblower case study: Suffering detriment’).

1.4 If the whistleblower does not wish to approach their employer, they can approach a prescribed person (Figure 1). A prescribed person is someone who is independent of the employee’s organisation, but has an authoritative relationship with them, such as a regulatory or legislative body. If a concern is raised with a prescribed person, it often indicates the whistleblower feels their organisation’s response is inadequate or they have been badly treated already. In such cases it is not uncommon for grievances to exist alongside the concern, requiring the prescribed person to differentiate the concern from the grievance in deciding whether to investigate the concern.

1.5 Prescribed persons can investigate a concern and recommend how an organisation should rectify any problems it finds. Some can take enforcement action against employers. The route of reporting to a prescribed person is important. Research by Public Concern at Work found that 60% of whistleblowers receive no response – either negative or positive – from management.2

Legislation

1.6 Prescribed persons are prescribed under the Public Interest Disclosure Act 1998 (commonly known as PIDA). The legislation offers a legal remedy in employment tribunals for whistleblowers who experience detriment or dismissal. The Department for Business, Innovation & Skills (the Department) has overall responsibility for implementation of the Act. It defines 64 prescribed persons plus the 468 local authorities in the UK and all members of Parliament (MPs). Prescribed persons can be central government departments, arm’s-length bodies or charities. As of 1 April 2014, MPs were added to the prescribed persons list.3

1.7 Prescribed persons have a remit for which they are prescribed. For example, the Comptroller and Auditor General of the National Audit Office is prescribed for matters related to ‘proper conduct of public business, value for money, fraud and corruption in relation to the provision of public services’.

Oversight of prescribed persons

1.8 The Department is responsible for the legislation whistleblowers can use if they suffer detriment or dismissal. This legislation defines the list of prescribed persons. To change the list of prescribed persons requires an update of the existing legislation through Parliament. The Department usually relies on other central government departments to notify it of an organisation that should be included on the list. However, in some cases organisations have contacted the Department directly and asked to be included. The Department told us it considers the statutory powers available to an organisation, and the other prescribed persons available in that sector, before agreeing a body should be prescribed. However, it could not give an example of when it has rejected a request.

1.9 In March 2015 the Department intends to publish guidance to explain the role and expectations of prescribed persons, and has established a working group to develop the guidance. Prescribed persons will be among the main users of this guidance, and are likely to have important views to contribute, but currently the working group only includes one prescribed person.

Whistleblowing framework

1.10 In autumn 2013 the Department consulted on how whistleblowing processes support those who blow the whistle. The government’s response in June 2014 drew the following conclusions:

the whistleblowing legislation is a remedy, not a protection;

the legislation deals with the workplace dispute that follows raising a concern rather than the malpractice reported in the concern;

there are negative attitudes ingrained in organisational culture that form barriers to whistleblowing working effectively; and

the way some employers and prescribed persons respond to a concern reinforces some negative cultural attitudes, such as assuming a whistleblower is using their concern as a threat against the employer.4

Scope of this investigation

1.11 This report is designed to support the prescribed persons community in improving the experience of whistleblowers and to encourage better use of intelligence provided by whistleblowers. It is intended to build on the recent work of the Department. Alongside the report, we intend to work with the Department and prescribed persons community in implementing our recommendations, sharing knowledge and experiences and embedding a culture of continuous improvement. We have examined the process for appointing and supporting prescribed persons, the information provided by prescribed persons to potential whistleblowers from outside their organisation, and how they handle concerns (Figure 2).

1.12 We selected 5 prescribed persons as case studies to assess how the responsibilities are working in practice (Figure 3). As part of this work, we also looked at our own procedures. Appendix One sets out our methodology in more detail. Appendix Two explains how our case study organisations handle concerns. Appendix Three summarises the staff survey results.

1 In this report we use the term ‘employee’ to refer to individuals who are protected by the Public Interest Disclosure Act 1998 (as amended). This includes contractors, trainees and agency staff as well as individuals under a contract of employment.

2 Public Concern at Work and the University of Greenwich, Whistleblowing: the inside story – a study of the experiences of 1,000 whistleblowers, May 2013. This report was based on experiences from both the public and private sector. This percentage refers to the experiences of 1,000 whistleblowers who contacted the Public Concern at Work advice line between 20 August 2009 and 30 December 2010.

3 The Department for Business, Innovation & Skills, Blowing the whistle to a prescribed person. List of prescribed persons and bodies, October 2014.

4 The Department for Business, Innovation & Skills, Whistleblowing framework call for evidence: Government response, June 2014.

Part Two

Contact from an external whistleblower

Prescribed persons could do more to explain roles and remits

2.1 It can be difficult for whistleblowers to identify the most appropriate prescribed person to contact (see ‘Whistleblower case studies: Finding the right prescibed person’). It is important that whistleblowers contact the correct prescribed person as raising a concern with the ‘wrong’ prescribed person could leave the whistleblower less likely to be protected under PIDA:

“The Public Interest Disclosure (Prescribed Persons) Order 1999 (PIDA) is often unclear regarding the scope of prescription, unless the whistleblower is also aware of the statutory functions of the regulator. In particular, whistleblowers are unlikely to be aware of the division of responsibility for health and safety between the Health and Safety Executive and local authorities, or between county and district-level local authorities.”5

The difficulties in identifying the right prescribed person are compounded because some regulators who could reasonably be contacted with a concern (as they are capable of investigating the issue) are not prescribed persons.

2.2 Raising a concern with the wrong prescribed person can have consequences for the whistleblower. ‘Scenario: raising a concern with the wrong prescribed person’ illustrates the potential confusion for a whistleblower where a range of bodies could reasonably be contacted, but only one is prescribed by PIDA. It may be more difficult for a whistleblower to be successful at an employment tribunal if they raise the concern with a prescribed person whose remit does not cover the issue.

2.3 Given the potential consequences, it is vital that prescribed persons explain what falls within their remit. We examined the websites of prescribed persons and found more could be done to explain roles and responsibilities to potential whistleblowers. Some could also give more information about the steps they take once a concern is raised and how PIDA legislation applies to them (Figure 4).

2.4 Other research has found that prescribed persons often do not display information on whistleblowing prominently on their websites. In their research paper, The Response to Whistleblowing by Regulators: A Practical Perspective, Hyde and Savage found that even though national regulators tend to display better information than the local authorities, for national regulators “instructions regarding whistleblowing are not directly linked from the regulator’s front page, often requiring a search, or a detailed exploration”.6 The paper goes on to state that the difficulties in finding information may influence a whistleblower to “either say nothing or to make a disclosure to a body without the regulatory competence to address the concern”.

2.5 The phrase ‘prescribed persons’ is not well understood – not just by whistleblowers but by staff employed by the prescribed persons we examined. In our survey, 42% of staff overall had heard the term, although 17% of these gave an incorrect description (see Appendix Three). Awareness of the term was higher for staff who were more likely to receive a whistleblowing concern, such as staff who answer the organisation’s whistleblowing hotline (Figure 5).

2.6 The need to explain remit is particularly important for the Independent Police Complaints Commission, which is unable to investigate any concern unless it has first been recorded by a police force either as a public complaint, a ‘conduct matter’, or a death or serious injury. When the Independent Police Complaints Commission receives a concern, its only recourse is to forward the intelligence to the relevant police force to be assessed and recorded as appropriate. It must then wait until (or if) the police force decides to resend the information to the Independent Police Complaints Commission for investigation.7

Prescribed persons need to better manage whistleblowers’ expectations

2.7 The Department acknowledges that “the expectation of the prescribed persons’ role is often not lived up to, leading to a lack of confidence in the role of these bodies”.8 There can often be a gap between whistleblowers’ expectations and the reality of raising a concern with a prescribed person (see ‘Whistleblower case studies: The expectation gap’). We asked the whistleblowers we spoke to whether the actions from the prescribed person met their expectations. Of the 17 whistleblowers who spoke on the issue, 10 said their expectations were not met, usually because the prescribed person did not investigate their concern.

2.8 Prescribed persons should clearly state powers and responsibilities to manage whistleblowers’ expectations. Some aspects of the system can undermine a whistleblower’s confidence (Figure 6). Whistleblowers also need to know that there are proper procedures in place to deal with their concerns and what will happen if they raise a concern.

Staff working for prescribed persons are aware of their responsibilities to whistleblowers

2.9 Our survey found that 86% of staff overall were aware of their responsibilities towards whistleblowers (see Appendix Three), and awareness was higher (91%) among those staff who are more likely to receive a concern (Figure 7). This most commonly related to keeping details confidential and explaining the process to whistleblowers, including whether they had raised the concern internally before approaching them.

5 Ashley Savage and Richard Hyde. The Response to Whistleblowing by Regulators: A Practical Perspective, Legal Studies, Imperial College London, November 2014. Available at: dx.doi.org/10.1111/lest.12066, accessed 22 December 2014.

6 See footnote 5.

7 The police force is required to refer the most serious matters to the Independent Police Complaints Commission for consideration as to whether they should be investigated by the Independent Police Complaints Commission or by the force.

8 The Department for Business, Innovation & Skills, Whistleblowing framework call for evidence: Government response, June 2014.

Part Three

Receiving and investigating a concern

Prescribed persons are well prepared to handle concerns

3.1 We examined how prescribed persons act on whistleblowing concerns. We found all have a defined set of procedures for handling concerns and most use a case management system to store responses, evidence collected and correspondence with the whistleblower. Because of the way some prescribed persons are set up, they choose not to categorise whistleblowing concerns from other types of concern. For example, the Office of Rail Regulation uses the term “vulnerable person” for any person raising a concern who believes they may be victimised or otherwise disadvantaged if they make a complaint in person. The Care Quality Commission is considering adopting an approach which will not distinguish between whistleblowers and other concerns.

3.2 All prescribed persons we examined had a central team for whistleblowers to contact. These teams receive the majority of concerns raised, but there are other routes. Any member of staff could receive a concern from an external whistleblower. Contact may come in the form of a phone call or email, but also, for example, through an informal conversation when inspecting an organisation. Figure 8 describes the process used by the Health and Safety Executive. This is similar to that used by other prescribed persons we reviewed. Appendix Two gives details of the procedures used by the prescribed persons we examined.

3.3 While each body is set up to focus on its own remit and goals, we found there are opportunities for best practice to be shared within the prescribed person community. For example:

the Office of Rail Regulation is also responsible for approving, monitoring and enforcing train operators’ procedures for handling complaints. This does not apply to other prescribed persons we examined;

the Office of Rail Regulation inspectors and Health and Safety Executive inspectors will meet with trade union representatives as part of their routine inspection to collect information on any concerns raised;

at the first point of contact, the Care Quality Commission uses a route map to categorise concerns and determine whether they are whistleblowers or not;

the Office of Rail Regulation has recently set up a link on its website to a ‘consumer’ website for complainants. This has reduced the number of inappropriate concerns;

the Financial Conduct Authority is producing a document which will explain its role and remit to whistleblowers. It will also analyse the whistleblowing information it receives and highlight success stories; and

the Independent Police Complaints Commission issues statutory guidance (for police forces) on how to handle complaints and conduct matters.

3.4 We found a positive approach to continuously improving procedures. All the prescribed persons we assessed have recently carried out, or are in the process of carrying out, some review of their activity or guidance. Some of these reviews are routine assessments. Others are a response to operational difficulties or previous weakness in performance. For example, the Health and Safety Executive did not achieve its target for clearing concerns within 21 days, so it increased the number of staff handling concerns. The Financial Conduct Authority has introduced an e-learning package for all staff. This followed a review of whistleblowing handling that found there could be a higher level of awareness of practices. The National Audit Office has recently updated its guidance to whistleblowers. This explains the value it places on information from whistleblowers and how it will handle concerns.

3.5 Following high-profile weaknesses at the Care Quality Commission, it is currently reviewing procedures for handling whistleblowing as part of its comprehensive review of its role as a regulator.

The majority of staff in prescribed persons are confident in handling a concern

3.6 In our survey of staff who work for prescribed persons, we found that the vast majority (90%) are confident in handling a concern raised directly with them (see Appendix Three). Confidence was higher among staff who have regular responsibilities for whistleblowers’ concerns (staff at high risk of receiving a concern) (Figure 9). While this is a very positive finding, knowledge of the Public Interest Disclosure Act 1998 (PIDA) legislation was generally low, so there are opportunities to improve staff understanding of the legislation. Confidence was higher for those staff who had received training on how to handle a whistleblower: 99% of staff who had received training were confident or very confident, compared with 79% of staff who had not had training.

Staff in prescribed persons are aware of the need to protect the identity of the whistleblower

3.7 Prescribed persons have a duty to respect the confidentiality of a whistleblower as far as possible. A whistleblower’s identity may be deduced by the employer during the prescribed person’s investigation. It should be made clear to whistleblowers what can and cannot be promised with regard to confidentiality. We found those handling calls on the central teams knew to explain risks of revealing identity (see ‘Whistleblower case studies: Remaining confidential (or not)’).

3.8 Our survey found 86% of staff were aware of their organisation’s responsibilities with regard to handling whistleblower concerns (see Appendix Three). Virtually all knew the importance of confidentiality and respecting requests for anonymity. Many, though not all, said they could not guarantee anonymity.

Training could help staff to be better equipped to handle concerns

3.9 Prescribed persons could give staff more training in what to do if a whistleblower contacts them. Our survey found 50% had been trained in handling a concern, with more staff who are at high risk of receiving a concern having received training (Figure 10). For some this training was several years ago, and focused on procedures rather than handling sensitivities associated with whistleblower’s concerns. For others, such as the Independent Police Complaints Commission, staff who work on the reporting line spoke about regular formal and informal training on whistleblowing. The Care Quality Commission introduced whistleblowing into its corporate induction programme in July 2014.

Prescribed persons have few performance metrics

3.10 Reporting against performance metrics varies across prescribed persons. Most prescribed persons we reviewed must decide how to respond to a concern within 24 hours (including assigning to an inspector in this time). However, they do not record their performance against this requirement. The Financial Conduct Authority has an equivalent 5-day requirement. Some (such as the Health and Safety Executive and Office of Rail Regulation) record progress against time targets. The Care Quality Commission records progress against the number of concerns received and the outcomes to such cases. Both the Financial Conduct Authority and Care Quality Commission are reviewing their performance metrics for handling cases. The Care Quality Commission is developing strategic measures and performance indicators that it will include in reports to the board and executive team. Details of recorded performance are given in Figure 11.

Prescribed persons do not provide consistent feedback

3.11 In its report Whistleblowing,9 the Committee of Public Accounts said whistleblowers need to know that they will be kept informed about the progress of their concerns. They also need to be told about any changes or improvements made because of the concerns they raised. Few of our sample of prescribed persons give a commitment to provide feedback to whistleblowers at set stages, because feedback depends on how much progress is made. However, this does not prevent prescribed persons giving interim feedback. We found that prescribed persons often did not provide this.

3.12 The Care Quality Commission recognises the need to improve feedback, but is limited by the number of anonymous concerns it receives. The Financial Conduct Authority is limited by legislation that restricts the amount of information it can share with individuals. However, it is trying to standardise feedback at the closure of cases. For investigations it takes on itself (rather than refers to a police force), the Independent Police Complaints Commission follows the feedback criteria set out in the Police Reform Act 2002. This says it must give feedback every 28 days or as appropriate, even though whistleblowers are not covered by this act. We spoke to whistleblowers and found variable feedback is given by prescribed persons to keep the whistleblower up to date (see ‘Whistleblower case studies: Keeping in contact with whistleblowers’).

The Department for Business, Innovation & Skills and prescribed persons could do more to reassure whistleblowers

3.13 One way prescribed persons can improve confidence in arrangements and manage expectations is to publish information on how concerns are handled. This will help potential whistleblowers see how the prescribed person will deal with their concerns. This in turn may encourage others to come forward. We found the information on whistleblowing concerns published by prescribed persons inconsistent (Figure 12).

Prescribed persons find it difficult to assess the experience of whistleblowers

3.14 Whistleblowers can be disappointed with the experience of blowing the whistle to a prescribed person. In some cases this is because the outcome is not as they hoped, for others because their experience of the process is poor. This can partly be addressed through clearly stating powers and responsibilities to manage the whistleblowers’ expectations (as described in paragraph 2.8). In addition, capturing a whistleblower’s satisfaction with the process will identify areas for improvement, yet none of our sample of prescribed persons directly measured customer satisfaction. The Care Quality Commission and Financial Conduct Authority are considering how to measure customer satisfaction. The prescribed persons can use the number of complaints received about their handling as a way of measuring customer satisfaction. Against the number of concerns received, the number of complaints made is small (Figure 13).

9 HC Committee of Public Accounts, Whistleblowing, Ninth Report of Session 2014-15, HC 593, August 2014.

Part Four

Using intelligence from an external whistleblower

Prescribed persons make use of the intelligence provided by whistleblowers

4.1 Whistleblowing is an important source of information to help identify wrongdoing and risks to public service delivery. In their research paper The Response to Whistleblowing by Regulators: A Practical Perspective, Hyde and Savage describe how regulators can make use of whistleblowing information: “they can collate information from a variety of sources to build up a picture of regulatory compliance or non-compliance”.10 Prescribed persons we examined use intelligence received in a number of ways:

to define areas to examine during an inspection (for example, the Care Quality Commission raises the risk rating of a provider if it receives more than one whistleblowing concern from its staff, and the National Audit Office uses whistleblowing intelligence when identifying future work);

to change labelling and advice to consumers (for example, the Health and Safety Executive received information about the dangers of burning skin when using concrete); and

the Financial Conduct Authority makes good use of whistleblowing to inform its reviews of businesses and themes, for example it analysed the types of concern raised about a particular institution, which led to changes in the areas of focus within routine inspection.

Government has committed to protecting whistleblowers

4.2 The government’s vision is to ensure that whistleblowers are protected from suffering any detriment or dismissal. In its report Whistleblowing, the Committee of Public Accounts recommended that strong leadership within central government is needed to lead changes to improve whistleblowing arrangements.11

4.3 The Department for Business, Innovation & Skills (the Department) is responsible for the Public Interest Disclosure Act 1998 (PIDA) legislation. This gives whistleblowers a route for claiming compensation for detriment or dismissal. The Department runs a network for whistleblowing policy leads in central government but it has no regular interaction with prescribed persons. It does not provide any support in terms of its expectations of the role. The Department told us that it previously relied on prescribed persons to interpret the law themselves and to establish procedures to fulfil their role. The Department has now begun work to support prescribed persons to better understand their responsibilities.

4.4 The Department needs to make clear how existing legislation for whistleblowers should be used in practice. The legislation gives a list of prescribed persons but it does not set out any action that they should take. It does not set out the level of evidence that they might expect to be available before they take any action. Prescribed persons do not always clearly state this, which may contribute to the gap between whistleblowers’ expectations and those of prescribed persons (Figures 6 and 7).

4.5 The number of whistleblowing concerns raised with prescribed persons is an indicator of the effectiveness of public service delivery. A concern is usually raised first with the employer. In such cases, where appropriately handled, no further stages of reporting would be necessary. The number of concerns raised externally, and how they vary over time, is an indicator of how effectively the system is working. The need for prescribed persons will always exist. But in a well-performing system reporting to them should be the exception, not the rule.

4.6 The existing system is not set up to allow the Department to collect the data it needs to understand the scale and nature of whistleblowing or how those blowing the whistle are treated. Without robust consistent information, the Department will find it difficult to understand the scale of whistleblowing, and to identify trends and hold bodies to account if whistleblowers suffer detriment or dismissal after raising a concern.

Whistleblowers can experience negative outcomes from their employer

4.7 The focus of this report is on prescribed persons. It is clear that this is one important component of the overall system in place to encourage and support whistleblowers. But as we described in Part Two, contacting a prescribed person does not in itself prevent a whistleblower suffering detriment or dismissal as a result of raising a concern in the public interest. On the matter of detriment, the Committee of Public Accounts said:

“Departments have sometimes failed to protect some whistleblowers from being victimised. We have heard of too many instances of appalling treatment of whistleblowers by their colleagues, but departments were unable to tell us if those who have threatened or victimised whistleblowers had been sanctioned.”
“It is essential that employees have… confidence that they will be taken seriously, protected and supported by their organisations if they blow the whistle… However, far too often whistleblowers have been shockingly treated, and whistleblowers who have come forward have had to show remarkable bravery.”

HC Committee of Public Accounts, Whistleblowing, Ninth Report of Session 2014-15, HC 593, August 2014

4.8 To tackle this, the Committee recommended that departments monitor trends such as the number of whistleblowing concerns and the timeliness of investigations. It also suggested they consider how to improve their support for whistleblowers through measures such as tracking employment skills and career progression.

4.9 Where a negative outcome is experienced by whistleblowers, it is not likely to encourage others to come forward. Of the 28 whistleblowers we spoke to, 6 left their organisation voluntarily, 9 were suspended or asked to leave, 3 were on extended leave and 3 remained in the organisation despite experiencing detriment (see ‘Whistleblower case studies: Experiencing detriment or dismissal’). The remaining 7 did not experience any negative consequences after raising the concern.

4.10 Public Concern at Work collects information from people who contacted their advice line to find out the outcomes after they raised a concern. The profile is similar to the one we found: one-third of whistleblowers were dismissed, over one-fifth were victimised or disciplined and one-fifth resigned. The remaining quarter experienced no consequences or positive outcomes.12 Of the whistleblowers we asked, 74% said they would blow the whistle again. This was mainly because they recognised the moral imperative to do the right thing. Those who told us they were unlikely to blow the whistle again explained this was because of the perceived lack of action taken.

4.11 We sought evidence from several organisations about how whistleblowers have been treated, and where sanctions have been applied to those orchestrating mistreatment. We found the organisations did not collect these data. Our interviews with whistleblowers indicate that detriment is an ongoing issue. Public Concern at Work was aware of only one case where staff who caused detriment or dismissal had been sanctioned.

It is difficult to understand the extent of whistleblowing, or the numbers of whistleblowers suffering detriment

4.12 It is difficult to understand the scale of whistleblowing concerns, given the lack of central data collected. The 5 prescribed persons we examined received a total of around 75,000 concerns or enquiries in 2013-14.13 In 2013-14, 2,032 PIDA cases (5% of all tribunal cases) were brought to an employment tribunal where the claimant indicated there was a whistleblowing aspect to the case. This represents all cases across public, private and third sectors. The Enterprise and Regulatory Reform Act, introduced in 2013, encourages parties to come together to settle their dispute before an employment tribunal claim is lodged.14 They can do this through the Advisory, Conciliation and Arbitration Service and greater use of settlement agreements. Out-of-court settlements by ACAS mediation are the most common outcome (Figure 14).

4.13 Public Concern at Work analyses all PIDA judgments and has concluded that, in its opinion, the act is not always interpreted consistently. Most respondents to the whistleblowing commission’s consultation thought there should be a degree of specialism in the employment tribunal service. This already exists in discrimination and equal pay cases where judges who have been trained are ‘ticketed’ to deal with the more complex discrimination cases. The Whistleblowing Commission, established by Public Concern at Work, also concluded that PIDA was too complex and needed review. They have recommended the simplification of PIDA.

10 Ashley Savage and Richard Hyde. The Response to Whistleblowing by Regulators: A Practical Perspective, Legal Studies, Imperial College London, November 2014. Available at: dx.doi.org/10.1111/lest.12066, accessed 22 December 2014.

11 HC Committee of Public Accounts, Whistleblowing, Ninth Report of Session 2014-15, HC 593, August 2014.

12 This is based on 1,632 whistleblowers who called the Public Concern at Work helpline in 2012.

13 This number is made up of concerns, enquiries and complaints.

14 Conciliation and settlement agreements were used before the Enterprise and Regulatory Reform Act was enacted: the act further encouraged the use of agreements.

Appendix One

Our evidence base

1 We selected 5 prescribed persons to examine in detail:

Care Quality Commission;

Financial Conduct Authority;

Health and Safety Executive;

Independent Police Complaints Commission; and

Office of Rail Regulation.

We also examined our own activities at the National Audit Office.

2 For these prescribed persons we:

examined websites to determine the information published on whistleblowing;

looked through cases to examine how the prescribed persons record, triage and investigate concerns;

spoke to whistleblowers who had contacted the prescribed persons to understand how they found the experience of whistleblowing;

surveyed staff in the organisations to investigate the level of knowledge of staff of the role of a prescribed person and the responsibilities this entails; and

interviewed staff to discuss how whistleblowing intelligence is used.

3 We spoke to the Department for Business, Innovation & Skills (the Department) to understand its role with regard to the legislation, supporting prescribed persons and encouraging whistleblowing.

4 We also spoke to relevant stakeholders, including:

the Advisory, Conciliation and Arbitration Service (ACAS);

HM Courts & Tribunals Service;

Unite, the Union; and

the Civil Service Commission.

5 We reviewed relevant literature such as academic papers, charity reports and departmental documents.

Appendix Two

Procedures used by prescribed persons

Appendix Three

Survey results

1 We interviewed 190 staff from our 5 case study organisations (Figure 16).

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