The life of the whistleblower is a lonely one. (S)he raises a concern and often finds that their organisation, instead of being grateful, shuns and avoids them. They are “sent to Coventry” in the old-fashioned sense. They then need to mind the yawning accountability gap which is found between raising their concerns and any action being taken. Very telling is a new survey by Protect, the whistleblowers charity, which shows that since 2017, only eight out of the 931 NHS whistleblowers who contacted the charity’s advice line said that they were thanked by their organisation, while 31 per cent told them that their concerns had been ignored.
Too often there is a defensive reaction to whistleblowers, creating the equivalent of a protective huddle around the organisation. The classic response is to deny, delay, defend. Fear of reputational risk is huge, but often ignoring the uncovered issue causes more reputational damage in the end. This societal attitude is very costly, but until now it was unclear how much. Protect’s research indicates that the financial cost is massive.
The charity’s report, called The Cost of Whistleblowing, considers three examples where brave whistleblowers have been ignored after raising concerns at an early stage. They are the Post Office Horizon scandal, the multiple deaths of babies at the Countess of Chester hospital, some of which former neonatal nurse Lucy Letby has been convicted of, and the collapse of Carillion, the construction giant. The first two are very well known; the effect of the latter was enormous as it involved many public private initiatives, such as hospitals and schools. But in all three instances the figures are sizeable: £177,967,265, £39,279,222 and £209,091,973 respectively. In the case of the Post Office, aside from the financial costs, ignoring early warnings resulted in wrecked lives, false convictions and reported suicides. In the Letby case, the result was the tragic deaths of babies.
The amounts above are conservative estimates of the losses incurred by not listening to whistleblowers. They include the costs of police investigations, delays to essential building projects in the Carillion case and compensation payments. This money could have funded the construction of 14 new schools. Or it could have been spent on employing 1,440 doctors or 2,580 nurses for five years, the charity calculates.
Any number of other matters could have been added to this sorry list. You can think immediately of the infected blood scandal and the Grenfell Tower fire tragedy. I am sure the true overall cost of ignoring whistleblowing is far higher than the figures above.
Whistleblowing reform is clearly needed, but there is no consensus as to the way ahead—and the government shows little sign of wanting to look at the area at all. The model used so far (since the early days of the Blair government in the Public Interest Disclosure Act 1998) is of employees bringing complaints in employment tribunals against their employers. I know from sitting part-time as a judge in such tribunals that non-legal lay members and litigants find whistleblowing legislation the most complex part of employment law to navigate. Disability discrimination is a close second, and is another area where many claimants are unrepresented. It is daunting for whistleblowing litigants, many of whom act in person. Lawyers’ fees mean going to the tribunal is costly, and it can take years, with the process often bogged down in the thickets of appeals. The psychological impact on whistleblowers can be immense. If you are in a narrow field of activity the chances of gaining another job are virtually zero.
Some think that we should change the whole pattern and that enforcement should be through a publicly funded Whistleblowing Commission. There is a nascent institution like this in Scotland for the NHS. So far, the reviews for it are mixed. In the NHS more broadly there are “Speak up Guardians” in all hospital trusts. They are often busy people, however, without autonomous decision-making power and they have limited resources. The Post Office scandal highlights another problem: sub-postmaster whistleblowers were not employees; they had no external body to approach in order to right the wrongs.
We should keep the basic structure, but we should reform it. At the minimum there needs to be a duty placed on employers to investigate whistleblowing concerns—save where they are vexatious, as some are. This is vital to closing the accountability gap. So many whistleblowers I have interviewed for a forthcoming book say that they wrecked their careers (and in some cases their marriages). Meanwhile the body to whom they blew the whistle did nothing with the information disclosed.
These three scandals were ultimately exposed by MPs and journalists often working together—an important safety valve, of course—but they lack the power and resources of a regulator, and the statutory powers in many cases, to investigate. The government should ensure that all of the relevant regulators are much better equipped to act on whistleblowing concerns and that people know who their regulator is. There needs to be a consistent approach to how regulators interact with whistleblowers, and how they investigate whistleblowing concerns. This will build confidence and ensure that they act as an effective channel for such concerns. At present, this is varied.
Further, the range of people in the workplace who qualify for whistleblowing protection should be extended to include volunteers, non-executive directors and sub-postmasters. Some think that rewards for information are the answer. I would steer clear of that as it introduces perverse incentives and would lead to frivolous claims. The government’s policy lead for whistleblowing is currently in the Department for Business and Trade and focused solely on employment rights. They should migrate to the Cabinet Office and be firmly part of corporate governance.
