It helps ensure that issues are raised internally to, control risk, avoid unnecessary litigation, limit reputational damage and protect staff morale.
The latest version of KCSIE makes it clear that all staff should be able to raise concerns about poor or unsafe practice and potential failures in the safeguarding regime through the whistleblowing procedures.
In this article we address some common questions around this area of the law.
Both employees and workers are protected from being dismissed or subjected to a detriment because they have made a protected disclosure. In this context, workers also include agency workers, freelance workers, seconded workers, homeworkers and trainees. It does not extend to individuals who don't work for the school such as pupils, parents or other interested third parties. It also doesn't include governors in their volunteer capacity. Schools may be advised to address concerns raised by these categories of individuals they do not fall within the scope of the protection for whistleblowers outlined in this article.
The dismissal of an individual will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. This includes selecting an employee for redundancy on the grounds that they have made a protected disclosure. In this context, there is no qualifying minimum period of service and no limit on the amount of compensation that can be awarded by a tribunal.
It is also unlawful for an employer to subject an individual to a detriment on the ground that they have made a protected disclosure. A detriment can include things such as disciplinary action, loss of pay and damage to career prospects. An employer is vicariously liable for the acts of its workers and employees in subjecting a whistleblower to a detriment. However, an employer will have a defence if it can show that it took all reasonable steps to prevent the detrimental treatment.
Whether a whistleblower qualifies for protection depends on a range of factors:
Is there a disclosure of information?
In order for a disclosure to be a 'qualifying' disclosure, the worker must make a disclosure of information. This must be something more than merely making an allegation, gathering evidence, or threatening to make a disclosure. The worker must convey facts, although this can include conveying facts which are already known.
Is the subject matter of the disclosure in scope?
There must be a disclosure of information that, in the reasonable belief of the worker, tends to show that one of the following has occurred, is occurring, or is likely to occur (referred to as a 'relevant failure'):
Did the worker have a reasonable belief?
A worker does not have to show that the relevant failure actually occurred, is occurring or is likely to occur, only that they held a reasonable belief in it.
With effect from June 2013 there is no longer a requirement that the disclosure is made in good faith. This means that an employee will be protected even if they have a vested interest in making the disclosure or if it is part of a broader dispute they have with the school.
Was disclosure in the public interest?
As of 25 June 2013 the worker must also reasonably believe that the disclosure is "made in the public interest". This was to ensure that the whistleblowing framework was not used for individual grievances.
Developing case law has unfortunately established that this is not as narrow as may have been anticipated, with many concerns raised by workers in schools likely to fall within the remit even if they are primarily about their own working conditions or treatment.
Nevertheless, if an individual raises a concern about their personal treatment, the grievance procedure should be utilised rather than the whistleblowing procedure.
Is the disclosure protected?
After establishing that there has been a qualifying disclosure, it is necessary to consider whether the disclosure is protected (and therefore that the whistleblower has the protection of the law). This depends on to whom the disclosure is made.
The legislation encourages disclosure to the employer in the first instance, however, disclosures to external third parties will also be protected in some circumstances. There is an approved list of prescribed persons to whom workers can make disclosures, although the conditions for making such disclosures are more stringent than the conditions for making a protected disclosure to the employer. The third party also needs to be an organisation which does have remit for the alleged fault. Most commonly for schools this will be the Charity Commission, ISI or Ofsted, LADO, Children's Services, the Information Commissioner or the Health and Safety Executive.
Employers should not rely on confidentiality clauses in contracts of employment to prevent workers from making external disclosures, as they are unenforceable if the disclosure is protected and, furthermore, taking action against a whistleblower for breach of confidence may amount to unlawful detriment.
When a complaint is received it is helpful to identify if this falls within the scope of the whistleblowing policy or would be better addressed through the parental complaints process or the employee grievance procedures.
It is important that even if a complaint is raised anonymously it should be investigated to the extent that you are able to do so, even though this may be limited.
Whistleblowing complaints should be investigated promptly and the whistleblower should be kept informed of progress where possible. This is important because a whistleblower may become suspicious and make an external disclosure if it takes the employer's silence as apparent inaction.
Employers should ensure they have a whistleblowing policy and that all staff are aware of this. A policy should set out procedures by which reports can be made confidentially, and allowing workers to bypass levels of management at which the problem may exist. Employers could also consider introducing a confidential whistleblowing hotline.
Schools should ensure that staff and managers are trained on the whistleblowing policy and make it clear that victimisation of whistleblowers, even where the whistleblower is mistaken, will lead to disciplinary action.
Given the nature of concerns raised under the whistleblowing procedures it is important that Governors are aware of issues and how they are resolved. Charitable schools will need to consider whether they trigger their obligation to report as a serious incident to the Charity Commission.
This article was first published in Independent Education Today.