Q: You have concerns about serious wrongdoing in your school but don’t know what to do. You fear that if you “blow the whistle” then you will be seen as a troublemaker, ignored or possibly even dismissed. What should you do?
Before taking any action, it is important that you understand which procedure to follow so that the school can address and resolve your concerns, and provide you with peace of mind that you have complied with your obligations and are afforded the appropriate legal protection.
Whistleblowing legislation was introduced under the Public Interest Disclosure Act 1998 (“the Act”) to encourage employees to come forward with disclosures of criminal behaviour or malpractice, without the fear of reprisal or dismissal.
Since its enactment there have been a number of high profile cases involving the NHS, banks, government departments and large corporate bodies where an employee had raised legitimate complaints and as a result was put at a disadvantage or dismissed.
Using the legislation, significant awards of compensation have been made in addition to reinstatement orders, and in some instances, criminal proceedings have followed for those who had broken the law.
In situations where whistleblowers are dismissed, there is the possibility of obtaining an interim reinstatement order from a tribunal – pending a final tribunal hearing – if an application is made promptly to ensure that the whistleblower is not financially disadvantaged.
If you reasonably believe that there is malpractice within your school, you should follow the school’s whistleblowing policy and report the matter to the relevant person (usually a member of the senior leadership team and/or the headteacher).
You may be required to put your concerns in writing and invited to a meeting to discuss any allegations so that the school can fully investigate the matters raised. The school should not ignore your concerns and must respond to you.
What is covered?
Under the Act, the categories of malpractice are extremely wide and include:
Miscarriages of justice.
Danger to the health and safety of any individual.
Damage to the environment.
Breach of any legal obligation.
Deliberate concealing of information about any of the above.
Malpractice can be past, present or prospective. If you reasonably believe that the allegation is substantially true then you can make a qualifying disclosure to the school.
In the public interest
Up until July 2013, there was a requirement that any disclosure had to be made in “good faith”. The government has removed this requirement and placed more emphasis on the disclosure being in the “public interest” and not for personal gain.
For example, under the revised legislation you would no longer gain protection under the whistleblowing legislation if you allege the school has committed a breach of your terms and conditions of employment. This is unlikely to be a matter in the “public interest” as it is a private matter between you and the school.
If you do have concerns about any breaches of your terms and conditions, these issues should be raised under the school’s grievance procedure.
The situation would be very different, however, if you genuinely believed that a member of the school’s staff was unlawfully taking money from the school or secretly entering into a procurement contract for their personal gain.
In order to be afforded protection against any subsequent detriment or dismissal that is causally linked to your disclosure, you will need to demonstrate that:
You have reasonable belief of malpractice,
The disclosure is in the interests of the public and
You have brought the matter to the school’s attention.
Q: If you are senior manager of a school or a school governor, what do you do when someone has blown the whistle?
Your immediate concern may be trying to limit any potential exposure or damage to the school’s reputation by containing the information. While this may be a natural reaction, it is important that you act in an open manner and take the employee’s concerns seriously.
It is, however, appropriate to instruct the employee to keep the details of the disclosure confidential and not to discuss the matter with any person other than a named individual at the school while the matter is under investigation.
It is important for the school to have a whistleblowing policy in place that sets out the procedure to be followed when a disclosure is raised. It is essential that the school follows the procedure, otherwise there could be criticism for breaching the policy.
If the school does not have a policy, it will need to assign a senior manager to investigate the allegations. Unless the employee has provided a detailed written account of the allegations, the school will need to speak to the individual to fully understand the nature of the concerns. Once the matter has been investigated, the school should notify the employee of the outcome.
Who is protected?
The individual making the disclosure does not have to be a permanent employee to be afforded protection; supply staff, other agency workers, as well as people who are training but not employed are also protected under the Act. Best practice is for the school to take any public interest disclosure seriously, regardless of the individual’s employment status.
In order for an individual to be afforded protection against victimisation and dismissal, they simply need to have raised a public interest disclosure to the school. The disclosure no longer has to be raised in good faith.
There has been some concern raised that this will encourage disgruntled employees to raise disclosures in bad faith. This cannot be prevented, although there may be financial penalties that a tribunal can impose if it finds that a disclosure has been made in this way. It is therefore essential that the school has robust procedures in place to address and resolve concerns quickly and effectively.
Following the investigation
Once the school has investigated a public interest disclosure, regardless of whether or not the disclosure had merit or was upheld, the employee must not be subjected to a detriment because of raising the disclosure. A school is vicariously liable for the acts of its employees. Therefore, other employees should be instructed not to treat the whistleblower differently.
This does not mean that the employee automatically gains protection preventing any future disciplinary action or can never be made redundant. The employee is simply sheltered from the school taking any action as a direct result of the disclosure. There would be nothing to prevent you from fairly dismissing the employee in the future if it was found they had committed an act of gross misconduct, which was not related to the disclosure, or if their position became redundant.
A weapon against unfair dismissal
Whistleblowers do not need any qualifying length of service to present a claim for unfair dismissal, and there is concern that the increase in unfair dismissal qualifying periods from one to two years may lead to more people ‘blowing the whistle’ on their employers when they face dismissal in this period.
Therefore, it is important that when terminating an individual’s contract, the reasons are fully documented so that the school can demonstrate that there is no link between the dismissal and any previous public interest disclosure. Schools can best protect themselves from claims by ensuring that they have a whistleblowing policy in place that is effectively communicated to all staff and that managers are fully trained to deal with whistleblowing complaints.SecEd
Paul Menham, associate partner in the education sector group, and Joanne Thorley, legal executive, at business law firm DWF.