Joe Nicholls is a partner in the Employment team at Stephens Scown solicitors, specialising in employment disputes, as well as negotiating exits for employees. Here he looks at the law around whistleblowing and the impact on both employer and employee in the healthcare environment.
Employees in the healthcare sector are principally employed to provide support and assistance to those in need of their care. They may be attracted to the profession because they are motivated by the desire to help others, particularly vulnerable individuals who can’t easily support themselves. They are also there to protect those individuals from harm.
Rarely has the role of carers in the care home environment been more valued and celebrated than during the 2020 pandemic. It shone a light on the immensely important job that they do. It also illustrated some of the fundamental challenges that the industry faces in trying to ensure that those in their care are safe.
That responsibility to keep others safe is critical to the function of the sector. It is not only something that society needs to embrace but is also something that needs to be protected.
The law governing the employment relationship recognises this. It recognises that in order to encourage, maintain and enforce that responsibility, a whistleblower needs additional protection against adverse treatment.
What is whistleblowing?
The care sector is regulated by the Care Quality Commission (“CQC”). The CQC’s guidance for care providers on whistleblowing describes it as follows;
“Whistleblowing is the term used when someone who works for an employer raises
a concern about malpractice, risk (for example about patient safety), wrongdoing or
possible illegality, which harms, or creates a risk of harm, to people who use the
service, colleagues or the wider public.”
The relevant piece of legislation which establishes the protections for whistleblowers in employment makes clear that there are three, distinct limbs to establish what is referred to as a qualifying disclosure. These are;
- Has there been a disclosure of information?
- Does the worker making the disclosure reasonably believe that it tends to show wrongdoing?
- Does the worker making the disclosure reasonably believe that the disclosure is made in the public interest?
If so, the disclosure will be protected if it is made to the worker’s employer, or another relevant party which can include the CQC or government minister, for example. There are others. The CQC’s definition provides more detail about what constitutes wrongdoing, and the legislation makes this clearer still, but principally for our purposes in the care sector, it relates to criminal offences, a duty to comply with a legal obligation or the health or safety of another.
It matters not if the disclosure was made orally or in writing, albeit a written disclosure makes the process of analysing the information easier to prove or disprove. Crucially, the person making the disclosure does not need to be correct in order to be protected. A disclosure can qualify as a protected disclosure if the maker of the disclosure believed that there had been wrongdoing and that their belief was objectively reasonably, even if they were mistaken in that belief.
The person making the disclosure must genuinely believe that there is a wider, public interest in the information being disclosed than simply their own circumstances. The law governing whistleblowing in employment prior to 2013 allowed for workers to raise concerns about their own employment contract and working environment specific to them and benefit from the protections afforded to whistleblowers.
This was changed by the government though an amendment to the legislation with effect from 2013 and since then, the information being disclosed has to have a public interest element to it. This also replaced the requirement for the disclosure to have been made in good faith, which is no longer part of the test, albeit it features in consideration about compensation.
The relevant test comprises both a subjective belief from the worker, as well as an objective element; whether the belief was genuinely and reasonably held.
What protections are available for whistleblowers?
Once a worker makes their disclosure of information and it satisfies the requirements of a protected disclosure, the worker is automatically protected against adverse, retaliatory treatment (referred to in the legislation as a detriment). They are also protected against being dismissed.
The relevant tests for each are as follows;
Detriment
The legislation defines the protection as follows;
“A worker has the right not to be subjected to any detriment by any act, or
any deliberate failure to act, by his employer done on the ground that the
worker has made a protected disclosure.”
Fast forwarding to any legal action, it will be for the employer to prove that the disclosure did not materially influence (in a sense of being more than a trivial influence) the detrimental treatment. This is the case if the worker can show that they both made a disclosure and were subjected to detrimental treatment.
Detrimental treatment is viewed objectively but is broadly accepted as being disadvantaged, having considered all of the relevant circumstances.
Dismissal
The test for dismissal is slightly different. The question to consider is whether the reason, or principal reason for the dismissal, was that the worker made the protected disclosure. If so, the dismissal would be automatically unfair. A dismissal may include a resignation if an employee resigns in response to the detrimental treatment and claims that it was those actions which repudiated their contract.
The protection extends further, with the legislature determining that employers needed to have extra deterrents from punishing whistleblowers. Unlike an employee who pursues a claim for unfair dismissal where their compensation is capped at the lower of their gross, annual salary or the maximum amount (which increases annually in April), claims of unfair dismissal where the principal reason is the fact of a protected disclosure are uncapped. This means that a whistleblower could potentially seek recovery of career loss of earnings with theoretically unlimited compensation.
In addition, claims for detriments allow the worker to recover losses flowing from the detrimental treatment and to recover losses for injury to feelings, usually reserved for discrimination complaints. These elements make a whistleblowing claim potentially, significantly higher in value than a dismissal or adverse treatment for another reason.
If an employee is dismissed or subjected to a detriment, they may decide to commence legal action. If they choose to do so, they have to commence Early Conciliation through Acas within three months less one day from the date of the dismissal or detriment. This is a mandatory step in the pre-litigation process but is then optional for either party to engage. It is designed to provide an opportunity to try to resolve the dispute before embarking upon litigation.
If Early Conciliation is not successful in resolving the dispute, the employee may then choose to present their claim to the Employment Tribunal. This step commences the litigation process and that plays out until it is concluded at a public hearing (typically), unless it is resolved or otherwise withdrawn before then.
What are the other risks for care providers?
Other than the fact that compensation is uncapped and can give rise to career loss of earnings, often straying into the tens or hundreds of thousands of pounds, the damage does not stop there. The legal fees of defending claims, even hopeless claims, can be significant and the time and resources that are invested in doing so often distract from the ability to effectively run the business.
It is typical for whistleblowers to report poor standards of care, neglect or abuse and these invariably need to be reported to the CQC, even where the allegations aren’t substantiated. Disclosures may trigger reports to other agencies, including the police or other agencies and potentially the relevant NHS Trust, all of which could put the care home at risk of further scrutiny, inspection, sanctions or forced closures. The CQC can prosecute care providers for failure to properly notify them of incidents which affect the health, safety and welfare of those using their services.
Beyond that, the reputational damage should a whistleblower succeed in legal action challenging detrimental treatment or dismissal for speaking out about poor practices can be significant, not only for the families of those in care, but in the wider community. It all points back to ensuring that complaints are handled properly and the reaction to disclosures is one of positive understanding and acceptance.
How does this play out in practice?
It is common for employees to report suspected wrongdoing, or concerns about safety to their employer. The employer is required to have a written, whistleblowing policy which explains how and when concerns can be raised, as well as the protections available to those raising the concerns.
The employer may or may not deal with that report appropriately and so it may be that the whistleblower decides to report their concerns externally, either anonymously, confidentially or openly.
Why is it important in the care home sector?
In the wake of the 2008 financial crisis and subsequent recession, the spotlight was on financial misconduct. Whistleblowers were an important part of holding those who acted fraudulently to account. The ability to speak out and report misconduct was, and is, critical to avoid a repeat of similar misconduct.
The same can be said of the care sector during the 2020 pandemic. The ability, courage and commitment to speak out against unsafe practices can be life-changing, and lifesaving. In an environment when poor practice or negligent behaviours can cause genuine harm, supporting and protecting whistleblowers in the care sector is arguably more important than in any other industry.
It is the vulnerability of those in care, often separated from their friends and family members and entirely in the hands of those caring for them that makes scrutiny of the care so vital. Ensuring that there is a strong culture and procedure for reporting concerns that is fit for purpose can be hugely beneficial for the care providers themselves. It creates trust, holds them accountable to improve the services they provide, prevents the escalation of risk, saves on the costs of the consequences of reversing improper practices and helps workers and residents to feel heard, trusted and safe. That trust will flow through the organisation and assist with recruitment, retention and reputation, creating a compliant, caring and trusted brand that can focus on the business of providing exceptional standards of care to those choosing to use their service.
The team at Stephens Scown understands that conflict with employees, directors or workers can arise for any number of reasons, impacting your relationship with that individual and the wider workforce, as well as on business performance. The employment team advocates for resolving workplace disputes as early as possible to ensure the best outcome in line with your business objectives.
About the author
Joe Nicholls is a partner in the Employment team at Stephens Scown and specialises in employment disputes, as well as negotiating exits for employees.
Joe has a successful track record representing businesses and individuals in all types of Employment Tribunal litigation. He also regularly advises businesses and business owners, HR teams and front-line managers with the resolution of employee issues.
For more information, contact Joe on: 01872 265119 or email him at J.Nicholls@stephens-scown.co.uk