Whistleblowing in independent education
Rob North, head of litigation at Sinclairslaw, presents this guide to approaching whistleblowing
Whistleblowing – or ‘making a disclosure in the public interest’ to use its formal name – occurs when a member of staff reports malpractice within his or her place of work. By virtue of the Public Interest Disclosure Act 1998, whistleblowers enjoy significant legal protection, the rationale being that individuals should be encouraged to come forward without fear of reprisals.
As a senior figure in an independent school, whistleblowing is especially pertinent to you. This is because you are responsible for safeguarding young, vulnerable people, the entity you run is relatively autonomous and the financial consequences of not following the law can be severe. A sound approach towards whistleblowing is, therefore, a must. Follow the seven tips below.
A situation will be a ‘whistleblowing’ situation where information is disclosed which, in the reasonable belief of the worker, tends to show that one or more of the following has taken place, is taking place or is likely to take place: a criminal offence, breach of any legal obligation, a miscarriage of justice, damage to the environment, danger to the health or safety of any individual or the deliberate concealing of information about any of the above. The worker must also reasonably believe that the disclosure is ‘in the public interest’. Where the disclosure concerns the individual rather than wider issues, the matter should be dealt with under the grievance procedure.
Know who is covered
Whistleblowing legislation applies to ‘workers’. It is important to be aware that this a wide term that not only covers employees but also contractors, agency workers and even work experience students.
Have a policy
Although the law does not require you to have a whistleblowing policy in place, you are well advised to. As well as providing you with a point of reference in the event of a disclosure, such a policy will demonstrate your commitment to listening to your staff and safeguarding the children.
The policy should be brought to the attention of all staff, who, amongst other things should know who to approach in the event of a concern, and how to approach them. Any immediate concerns or current risks to a child, should, of course, also be raised via the child protection procedures that apply.
Although the law does not require you to have a whistleblowing policy in place, you are well advised to
Follow a procedure
Once a disclosure has been made, a set procedure should be followed. This will usually involve an internal investigation, the outcome of which should be communicated to the whistleblower.
Should a whistleblower feel their concerns have not been properly addressed internally, they may wish to take the matter to an external ‘prescribed person or body’ such as Ofsted or the DfE.
A whistleblower should only bypass internal procedures where there are good reasons for believing the school will cover the matter up or treat them unfairly, or if they have raised the matter before but it has not been dealt with. Staff should always be encouraged to raise any concerns internally.
It is best practice to take all reasonable steps to maintain the confidentiality of the whistleblower, especially where this is specifically requested. If you feel that the information needs to be shared with third parties, you should normally make the whistleblower aware of this from the outside so that they are not given unrealistic expectations as to confidentiality.
Protect the whistleblower
A dismissal (or selection for redundancy) will be treated as ‘automatically unfair’ where it is wholly or mainly a response to a protected disclosure. Note that whistleblowers do not need any qualifying length of service to present a claim for unfair dismissal and that the normal ‘two-year rule’ does not apply. An Employment Tribunal may reinstate the employee and/or award uncapped compensation.
As well as being protected from dismissal, whistleblowers are also protected from all other forms of ‘detriment’ including being overlooked for a promotion, being subjected to harassment and victimisation and receiving a poor appraisal. Detriment includes being treated less favourably by colleagues, so you may wish to instruct your employees to be kind to whistleblowers!
Foster a positive culture
As a school, do all you can to foster a warm and transparent environment where all members of staff feel able to voice concerns. This can go a long way to preventing whistleblowing issues arising.
Rob North is head of litigation at Sinclairslaw. He and the rest of our specialist team have a wealth of experience in the sector. Contact us for a free discussion about how we can support your school.
T: 02088 914 488