Awarding organisation event - May 2014 by Trudie Wright

1. Whistleblowing
May 2014
Trudie Wright

2. What is whistleblowing? And why is it so
vital?
• Raising a genuine concern within the workplace about suspected danger, risk,
malpractice or wrongdoing.
• Different to complaints or employment grievances.
• Part of good governance.
• Important in an open and transparent culture.
• No organisation is perfect – whistleblowers should be welcomed to provide
the opportunity to address a wrong doing.
• Pick up and correct issues early.
• Reduce the risk of malicious leaks.
• Minimise the cost of compensation and/or legal action.
• Maintain good reputation.
• Prevent intervention from the regulator!

3. The world of the whistleblower
• 1 in 4 have something to say but 52% of those stay silent (Research for the
Institute of Business Ethics).
• They have the most to lose.
• It is a brave step and likely to be about their peers or their manager.
• May well be a life changing step.
• Whilst there are protections in place, often the person whistleblowing will
leave the job they are doing either voluntarily or be dismissed.
• Compensation may well be achieved when unfairly dismissed but the longer
terms effects can be very high.
• They may be nervous, principled, angry, concerned, looking for justice,
misguided, malicious, anti competitive, relieved.

4. The legal perspective
• Public Interest Disclosure Act 1998 (PIDA).
• Whistleblowers may be given protection if they suffer detriment or are
dismissed by their employers because they have spoken up.
• There is no financial cap on compensation in whistleblowing claims and no
minimum period of service required.
• Good, but after the event – so not as effective as it could be to encourage
people to come forwards.
• More likely to be protected if they can disclose internally to their employer.
• They can come to Ofqual as the prescribed industry regulator.

5. Legal perspective continued..
• In order to receive protection under PIDA, the disclosure has to be a qualifying
disclosure, made in the public interest, within our statutory remit and the worker has to
believe that the disclosure shows one or more of the following is likely to occur:
- A criminal offence - Danger to health and safety of an individual
- Breach of any legal obligation - Damage to the environment
- A miscarriage of justice - The deliberate concealment of the above.
• A word about delegation
• Having whistleblowing arrangements in place is not mandatory; however having
whistleblower arrangements demonstrates to stakeholders, the regulator and the courts
that you are accountable and well managed.
• Data Protection Act – responsibilities under DPA.
• There were, in 2010, changes to the Bribery Act creating a new offence under section 7
of failing to prevent bribery. Having whistleblowing procedures can be a defence for
organisations seeking to show how it has acted to prevent cases of bribery.

6. What action is Government taking?
• No immediate plans to require employers by statute to have in place whistleblowing
arrangements.
• The Whistleblowing Commission set up by PCAW made a number of recommendations
in its report issued November 2013. For example it recommended that PIDA is
amended to authorise the Secretary of State to issue a code of practice on
whistleblowing arrangements and that such a code must be taken into account by
courts and tribunals.
• Looking at regulators to do more to require or encourage those they regulate to have
affective arrangements in place. To have better oversight and review recognition where
AOs fail to have effective procedures.
• Requiring us as a regulator have effective procedures in place for handling
whistleblowers.
• Requiring us to report annually on data about whistleblowers.

7. Regulatory framework – what do we expect
to see?
• Under General Conditions of Recognition - condition A - concerning good governance.
• In particular: A8 - concerning preventing and investigating malpractice; B3 - the
management of events which could have an adverse effect; C2 - your
arrangements with centres, specifically that you require centres to take all reasonable
steps to ensure that you are compliant with all conditions.
• Under guidance issued to accompany A8 we say a positive indicator is that:
“The AO uses and regularly reviews a standardised investigations policy and
approach that sets out:-How whistleblowers will be treated, and in such a way that
individuals will not be prejudiced”
• Within the recent malpractice thematic review we found that whistleblowing
arrangements within most AOs we sampled were not adequate.
• The need for AOs to have both internal and external policy and procedures
• The importance of clear signposting and encouraging people to come forward as
opposed to confusing it with complaint handling and not being clear on expectations

8. How do we approach whistleblowing?
• We have a published policy on our website and internal procedures to deal
with all whistleblowing disclosures consistently.
• We have a specific whistleblowing webpage and we encourage
whistleblowers to make a disclosure to us (easy to use form).
• When asked, we try to keep a whistleblower’s identity confidential, but
sometimes we may have to share information with other agencies, the police,
courts etc.
• We track and report on trends to inform our monitoring work.
• We report annually to our Audit and Risk Committee and externally through
our report to Parliament.

9. The process for handling
Disclosure received
Acknowledge quickly
Set expectations
Establish the basis
of claim
Gather evidence
Investigate:
About AO – Ofqual
About a centre –
AO
Report back to
whistleblower

10. Volumes of disclosures made to Ofqual
3
29
56
5
0
10
20
30
40
50
60
2011/12 2012/13 2013/14 2014
no. of cases

11. Concerns and challenges
• Lack of policy and procedures in place – internal and external.
• Poor signposting and lack of encouragement.
• Lack of awareness about PIDA and responsibilities under DPA.
• Poor logging, tracking and reporting arrangements – therefore inadequate MI.
• A sense of not taking it seriously or jumping to conclusions about malicious intent.
• Lack of clarity for staff on how to handle whistleblowers.
• The thoroughness of investigations.
Starting point:
• Most whistleblowers’ intentions are honourable.
• They deserve a fair hearing and should be taken seriously.
• Even if a disclosure cannot be substantiated it is still vital intelligence which you may
use to review your risk or QA arrangements of a centre.

12. Help and advice
• British Standards Institution’s Code of Practice on Whistleblowing
Arrangements.
• Public Concern at Work (PCAW).