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CHAPTER 2

WHISTLEBLOWING

GOOD, BAD AND UGLY

Commentary, reaction, blame or praise about whistleblowing – take your pick – are not generally informed either conceptually or empirically. Whistleblowing can crop up in casual conversation when a whistleblower case hits the headlines. The general public may have a view, often of bewilderment, about the behaviour of those running the bank, corporation, health or social care organization that allowed the corruption, poor care or illegal activity to occur in the first place and, even more disconcertedly, of the retribution heaped on the whistleblower after their exposure of it. It is hard for the outside observer to grasp what appears to be the irrationality, if not insanity, of the denial/defence/blame response of large organizations to whistleblowers and the matters they raise concerns about. It seems to be even harder for those organizations to think more carefully about how they respond to the whistleblower.

This chapter provides an overview of whistleblowing, the whistleblower, and of what they may anticipate after they blow the whistle. First, some of the fables, fantasies and facts around whistleblowing and the public reaction to whistleblowers are discussed. Next, what whistleblowing is, both conceptually and practically, is considered, followed by, third, a review of the characteristics of whistleblowers. Fourth, what is involved for the whistleblower in weighing up the costs and benefits of speaking out is outlined, along with the double bind that is the requirement on the health or social care professional to report wrongdoing, and the detriment they personally may suffer when they do. The fifth part of the chapter, on UK whistleblowing legislation and policy, is a bridge (or breathing space) before the final section. This looks at what happens when people whistleblow, particularly the retaliation and retribution they may suffer, notwithstanding any protection under law they may have. Turning a blind eye to the possibility of retaliation is like turning away from the wrongdoing itself. Both are denial. Better for the whistleblower, and their managers, to face into this, than pretend it doesn’t exist.

FABLES, FANTASIES AND FACTS

Media coverage of whistleblowing is fond of constructing a narrative of the lone hero taking on organizations, agencies, companies (as Time magazine’s 2002 ‘Persons of the Year. The Whistleblowers’ (Lacayo and Ripley 2002)) or sometimes an entire industry (such as the scientist Jeffrey Wigand’s exposure of tobacco (Armenakis 2004)). This storyline plots the whistleblower’s selfless drive to counter injustice and corruption, to stop harm and suffering being visited on people, animals, and the world in which we live, by the actions or inaction of organizations, corporations or professions. The ‘selfless heroism’ portrayal of the whistleblower and the whistleblowing dovetails nicely with the individualistic, ‘small person against the big corporation’, David v. Goliath cultural motif that sells front covers and makes blockbuster films. Goodies and baddies, heroes and villains, right and wrong, make good copy. It is a neat duality that has little or no concern with the lifelong, life-changing, personal, financial and human costs to the whistleblower and their family, or to the victimization, retaliation or ostracism they may well live with for the rest of their lives as a consequence of their raising concerns and speaking out.

In this vein, Grant (2002) wondered if whistleblowers were ‘saints of secular culture’. Whether saint or sinner, the whistleblower and whistleblowing encapsulate conflicting and conflicted social values. We love the underdog taking on the organization, but hate sneaks, snitches and grasses. We revere the charismatic individualist, but at work want everyone to keep their head down, get on with their job and, above all, fit in with the team. There is public outrage about domestic violence, yet banging and shouts from next door are ignored and the TV turned up. We elevate ‘family’ and worship family life, but anyone speaking out about abuse and mistreatment by a family member had better watch out. Not seeing, not hearing and not speaking out about injustice coexist with relief that someone else did, and we’re glad it wasn’t us.

The popular narrative places great expectations on the whistleblowing act. The subtitle of Glazer and Glazer’s (1989) book The Whistleblowers was A New Tradition of Courageous Dissent. Mansbach (2011) was of the view that whistleblowing protects the community, promotes the public good and extends the rule of law. Lewis, Brown and Moberly amplified this: ‘…whistleblowing is now established as one of the most important processes – if not the single most important process – by which governments and corporations are kept accountable to the societies they are meant to serve and service’ (Lewis, Brown and Moberly 2014, p.1; emphasis in original). The accountability of huge corporations, industries and governments is, in a deft twist of logic, outsourced to the individual whistleblower, who also, of course, depends on that institution for their livelihood. The challenge that whistleblowing might once have presented to the company is thus co-opted and incorporated into huge organizations and governments, who then claim self-regulating ‘social responsibility’ (Pemberton et al. 2012).

WHAT WHISTLEBLOWING IS

Despite periodic media coverage, the social phenomenon that is ‘whistleblowing’ is underdeveloped both empirically and theoretically in the social sciences (Miceli and Near 2005; Pemberton et al. 2012). Internationally, and historically, most published studies and research have been carried out by US academics on US organizations (although that is now changing). Caution is needed before transferring lessons and learning from that economy and culture, with its particular approach to labour law, to other jurisdictions with very different legislation, legal protection, and approaches to employee rights protection in the workplace. There is a dearth of systematic analysis of the relationships between organizational characteristics that help whistleblowing: aggressive, neo-liberal, competitive and highly individualistic economies and economic frameworks such as in the US, are very different from the labour market and employment practices of, say, Norway (Pemberton et al. 2012; Skivenes and Trygstad 2010).

‘Whistleblowing’ itself is a US term, although it may have British origins in the practice of old-style police officers blowing a whistle if they suspected wrongdoing (Evans 2008). Whistleblowing is not complaining, suing or arguing. A whistleblower discloses information across a particular organizational boundary, whether internal (say, from one part of the organization to another) or external (from within the organization to the public domain) (Bouville 2008; Evans 2008). In the UK, whistleblowing in its legal sense is action taken by an employee under the Public Interest Disclosure Act 1998 (PIDA). Under this law, which is discussed below, a member of staff may assume protection against subsequent harassment or dismissal by employers when the employee makes a qualified disclosure of fraud or malpractice to a designated officer.

The commonly used definition of whistleblowing was set out by US academics Near and Miceli in the 1980s: ‘…the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action’ (Near and Miceli 1985, p.4). Skivenes and Trygstad (2010) widened this to include all forms of communication where critical voices are raised about wrongdoing in the presence of someone who can stop the misconduct; and that includes day-to-day communication and critical discussions between managers and employees that are part of work, or should be. Skivenes and Trygstad regarded Near and Miceli’s definition, above, as ‘weak whistleblowing’, or the first step taken when an employee raises concerns. They contrasted this with ‘strong’ whistleblowing, which ‘focuses on process and on cases where there is no improvement in, or explanation for, or clarification of the reported misconduct from those who can do something about it’ (Skivenes and Trygstad 2010, p.1077). In these cases, the employee has to report the matter again, hence Skivenes and Trygstad’s notion of ‘strong’ whistleblowing, or turning up the volume on raising concerns, not giving up, and going outside the organization with the matter.

For Jubb (1999), six elements were necessary for the act of whistleblowing:

1.the act of disclosure itself

2.the person disclosing

3.the subject of the disclosure

4.the target of disclosure

5.the disclosure recipient

6.the outcome.

Jubb regarded whistleblowing, variously, as a public act of dissent, of conflicting loyalty, a deliberate non-obligatory act of disclosure. For the purposes of this book, ‘whistleblowing’ is used in its widest sense – that is, to describe acts of speaking out to raise concerns about the standard, legality and probity of practice in health and social care, and whether these matters are raised inside or outside the organization. These may be acts of dissent, as Jubb characterized whistleblowing. The act of whistleblowing may be about an organizational system, a process, or an entire sector, such as Wigand’s disclosures on the tobacco industry in the US. Fundamentally however, whistleblowing (whether internal or external to the organization) has three defining features: first, intentional disclosure of information by an employee; second, the disclosure of concerns, malpractice or wrongdoing over which the organization has control or responsibility; and third, the purpose of the disclosure is to put right the malpractice or wrongdoing (Tsahuridu and Vandekerckhove 2008).

Whistleblowing itself is a dynamic process, in that the dynamics between the people involved and the particular situation interact when protected disclosures are made. This way of seeing whistleblowing assumes three (or more) parties: the person doing wrong, the person observing wrongdoing and the person who receives the report of wrongdoing (Near and Miceli 1996). This triad assumes the supposed wrongdoing is committed by an individual, rather than by some, or many, behaving and acting in accord with institutional practices, such as when corrupted health and caregiving become normalized, or systemic. Although whistleblowing gets personalized – the individual whistleblower is named (and often shamed for their trouble) – the concerns they raise may be about bad, poor or dangerous practices that have become embedded, institutionally and structurally, in health and social care systems. The disaster of early twenty first-century healthcare in England at Mid Staffordshire NHS Foundation Trust was not that of a few isolated incidents, but systemic failures that many employees had tried to raise concerns about, and over a long period of time. Systematized bad practice – where workplace culture, ways of working or of treating people, becomes institutionalized and normalized – have been features of some of the worst health and social care scandals in the UK. Understanding this is critically important to prevent future harm, suffering, and sometimes death, being visited on sick or vulnerable people, and to recognize that those speaking out about harm are the organization’s early warning system of failure.

WHO IS LIKELY TO WHISTLEBLOW AND ABOUT WHAT?

The sort of wrongdoing or bad practice that may lead to someone whistleblowing covers a wide spectrum. Your bad practice may be my self-justified corner-cutting to get the job done, please managers and hit targets. Brown (2008) pulled out six categories of wrongdoing from a large survey into public interest whistleblowing in Australian public sector agencies:

1.conflict of interest

2.improper or unprofessional behaviour

3.defective administration

4.waste or mismanagement of resources

5.perverting justice or accountability

6.personnel or workplace grievances.

This survey found whistleblowing to be more commonplace in the Australian public sector than had been expected; the most serious reported wrongdoings involved corruption, defective administration or waste.

As to who whistleblows, spotting personality traits and individual characteristics of the whistleblower doesn’t provide a coherent picture of their profile. The search for the personality attributes, beliefs and motivations of whistleblowers yields a very mixed picture (Pemberton et al. 2012). Age is not a predictor of the propensity to whistleblow, but then employee age is usually inextricably bound up with other occupational variables, such as the employee’s length of service, experience, nature of their tenure and supervisory status. Depending on the sector and industry, for example, older employees with security of tenure and more experience may be more likely to hold supervisory positions. In a review of the 2003 US National Business Ethics Survey, Stansbury and Victor (2009) found that individuals who were both young and with short organizational tenure were less likely to whistleblow. Again in the US, Near and Miceli (1996) found that whistleblowers were older, with longer tenure and higher educational attainment, than non-whistleblowing employees; they were thus more likely to be better paid and hold supervisory status that carried with it responsibility for rectifying wrongdoing. Employees who do not see whistleblowing as part of their job are less likely to raise a concern; those holding some scrutiny responsibilities in their place of work are more likely to report wrongdoing (Miceli and Near 2005). People with higher status and positional power in the organization tend to be more experienced and better paid, and generally to be more proactive in tackling problems and raising concerns (Miceli 2004). None of these findings is personality trait based. They are situational; that is, employees occupying a particular job in an organization, and having certain status and responsibilities to sort out problems, appear more likely to raise concerns.

The significant finding of Brown’s Australian survey mentioned above, and others, is that with one exception there is little to distinguish whistleblowers from non-whistleblowers. You can hardly tell them apart on any of the usual matrices that differentiate employee competencies, skills and propensities. Whistleblowers hold the same attitudes about their workplace, about their job and about their managers as those who remained silent. Almost anybody in this survey could be expected to speak up and not – as retribution attacks by the organization on the whistleblower would have us believe – just those who were bitter, passed over for promotion or looking for a fight. By the same token, almost any employee could stay silent in the face of wrongdoing. Just one characteristic set those who spoke out apart from others, and that was the high level of ‘organizational citizenship behaviour’ they displayed – that is, they cared about the organization and took their role as part of it very seriously (Brown 2008).

So it is not simple to spot who will whistleblow. If an employer wanted to select (or deselect) people likely to speak out about wrongdoing, they could not easily pinpoint the killer qualities of the whistleblower. Attempts to identify individualized personality traits that set the whistleblower apart from their peers have generally been disappointing. Stansbury and Victor (2009) found that ‘prosocial’ behaviours (behaviour motivated by altruism as well as self-interest, and intended to benefit the public or social good), when reinforced and informally normalized in the workplace, were more likely to increase whistleblowing activity. Younger and short-tenured employees were less influenced by this prosocial control, suggesting that this is learned and reinforced over time in the workplace. As with the organizational citizenship behaviour found in Brown’s (2008) study, when an employee displays prosocial behaviour – when they care about what they do and want to benefit the public or social good – they are more likely to raise concerns about practice. This prosocial behaviour needs an environment in which it is cultivated and valued: an organization and employer that is prosocial, and displays citizenship behaviour in what it does, and how it does it. Context counts.

The power of the context to influence whether employees speak out about concerns cuts both ways. Low-wage sectors and deregulated labour markets (as are significant parts of the US and UK economies), characterized by job insecurity and with limited, if any, employment protection, employing younger employees and women with young children, are more likely to be deterred from raising concerns (Zipparo 1999). Thus pre-existing structural inequalities impact on employee propensity to blow the whistle. Keeping children fed, warm and clothed while working antisocial hours in more than one minimum wage, zero hours job dampens down the appetite for upsetting the precarious applecart that is job (in)security. In health and social care services in the UK, care support workers are typically on minimum wage. The use of agency staff in health and social care services is widespread. These are not job conditions that encourage whistleblowing.

Even though they coined the term ‘ethical resister’, Glazer and Glazer (1989) agreed that the decision to report wrongdoing could not be attributed only to an individual’s personal propensity to do so, or to any identifiable, innate features predisposing one person to raise concerns but not another. Jeff Wigand, the scientist who exposed the duplicity and corruption of the tobacco industry in concealing and misrepresenting data about smoking-related death rates, said there was no great epiphany for him when he went public with his concerns. Wigand came to regard what he did as an ethical decision, an incremental process of unsuccessfully raising concerns inside the organization, and then taking them outside the tobacco industry (Armenakis 2004).

There is, then, no clear profile of the ‘typical’ or ‘predictable’ whistleblower. Who whistleblows, why they do, why some chose one path and not the other, are not questions for which there are evidence-based answers (Bocchiaro, Zimbardo and Van Lange 2012). Searching for the individual traits and characteristics that constitute ‘the whistleblower’ overlooks the power and influence of the workplace context the whistleblower finds themselves in. Any search for individualized predictors of whistleblowing, devoid of attention to context, situation and power dynamics, is unlikely to produce anything other than a list of decontextualized, scientifically weak characteristics with little predictive or explanatory power. Personal and situational characteristics interact, but those contextual variables – the organization, its culture, relationships of power and authority, peer group pressures – explain the propensity to whistleblow more than individual factors (Near and Miceli 1996). If, for example, managers and supervisors routinely raise concerns (thus displaying prosocial organizational citizenship behaviour) the likelihood of a new employee doing so is greater, as they conform to the norms of the workplace and model their behaviour on more positionally powerful colleagues. Co-workers encourage or discourage whistleblowing through social reinforcement of workplace norms, and those informal structural characteristics of group behaviour tend to regulate member behaviour (Greenberger, Miceli and Cohen 1987). Thus whistleblowing becomes likely in organizations that actively support whistleblowing, in word and deed. These are the places with the ethics codes that lift off the page. They are likely to be high performing, relatively non-bureaucratic places, and cluster in the public rather than the private sector (Near and Miceli 1996). Norwegian public sector employees generally have a positive experience of whistleblowing, and many do so (Skivenes and Trygstad 2010). This isn’t surprising. Social behaviour does not occur in a vacuum.

WEIGHING UP THE PROS AND CONS OF WHISTLEBLOWING

To become a whistleblower in health and social care services, whatever the duties of the person’s professional code, requires a bit of thought. The whistleblower is raising concerns about something the organization is doing or not doing. The organization has its particular history, culture, climate and ways of managing dissent, which the whistleblower may well be very aware of. Weighing up whether or not to whistleblow becomes a sort of cost-benefit analysis (Miceli and Near 1985).

Whistleblowing involves other people, both in the organization and outside it (in health and social care, these include regulators, policy makers and politicians). The costs of not whistleblowing may well involve the perpetuation of harm, corruption and wrongdoing; the damage being done to people who are vulnerable, by virtue of their dependency on those health and social care services. The whistleblower’s own personal and professional circumstances – their livelihood, career history and aspirations, their obligations and responsibilities to support others – also figure on the costs side. On the other side is the benefit that exposing harm, poor practices and wrongdoing may bring to those directly affected by it. The organization may benefit from understanding better where, tacitly or knowingly, it colluded in the harm perpetrated. The deep learning on offer to the health or social care organization, which can come from disasters in health and social care, is a benefit beyond measure. But the organization has to engage, systemically and systematically, in that process of deep learning for that benefit to be realized.

CODES AND WOES

In the UK, registered health and social care professionals hold professional obligations not to permit people using their services to come to avoidable harm. These are variously expressed in professional codes of conduct and registration. Laying a mandatory duty on health and social care staff (discussed in Chapter 6) to report poor care typically decontextualizes incidents of poor care from the situational dynamics in which they occur. Registered nurses in the UK, for example, are required by their regulatory body to raise any concerns they might have about healthcare delivery. This requirement would seem to render redundant any consideration of the pros and cons of whistleblowing – they would have to do it, wouldn’t they? It seems not. Attree’s interviews with 142 nurses in England (age range 21–60; length of service two weeks to 40 years; ten males) highlighted the problems they felt they faced in doing something that wasn’t quite as simple as ‘just report it’. What put many of these nurses off reporting, contrary to the duty of their registration to raise concerns, were fears of personal repercussions and retribution, worries about being labelled a troublemaker or being blamed for causing difficulties for colleagues. Whistleblowing was regarded as a high-risk activity with little or no pay-off for the nurse (Attree 2007).

Of course, nurses in Attree’s interviews might have witnessed how those raising concerns before them had been treated. In England, the public inquiry into the failings of the Mid Staffordshire NHS Foundation Trust described the experiences of Nurse Donnelly who, in a protected disclosure under the UK’s whistleblowing legislation, said she had been asked to fabricate patient nursing notes to conceal the number of patients whose length of stay in the Accident and Emergency department of Stafford Hospital was breaching the four-hour waiting time target. That is, she had been asked to lie, to make it look as though some patient waits had not been in excess of four hours. Before she disclosed, she had sought advice from her Royal College of Nursing representative, who told her that there was little that could be done, and that she should just ‘keep her head down’ (Francis 2013a, p.109). In other words, do nothing.

Nurse Donnelly stood out from her peers in her decision to speak up about wrongdoing. She went against the grain of the organizational culture she worked in. In general, weighing up whether to report wrongdoing hinges, in part, on the whistleblower’s perceptions of the support or back-up they’ll get from their immediate manager if they do. Whistleblowing is more likely in organizations that support it, and which are themselves perceived to be fairer and ethical (Miceli and Near 2005). An employee may be more likely to report if they think their manager will back them up. By the same token, how the employee regards organizational whistleblowing policies influences their decision to whistleblow (Sims and Keenan 1998). Supervisor support for whistleblowing, and informal policies to support external whistleblowing, are significant predictors of whistleblowing. All of these are factors directly influenced by managers in the particular organizational culture and milieu: ‘…organization leaders create an environment of support and encouragement for their employees to speak up and blow the whistle on illegal, unethical, or illegitimate activities’ (Sims and Keenan 1998, p.420).

Key constituents of this ‘environment of support and encouragement’ to speak out are legal rights and protection, trade union support and communicative cultures in organizations where employees can freely voice opinion and criticism, and report wrongdoing, poor practice or corruption. In extensive studies on whistleblowing among public officials in Norway, Skivenes and Trygstad (2010) found that employees witnessing serious wrongdoing at work generally voiced their concerns and reported misconduct they observed to someone. Two-thirds of the 834 whistleblowers in this study said changes had come about as a result of their speaking out; eight out of ten reported they had had a positive response to their concerns. Employees were more likely to report misconduct if the person responsible was a subordinate or colleague, rather than an immediate supervisor or senior manager. Being a member of a trade union increased the likelihood of whistleblowing; and good contact with employee representatives increased the probability of external whistleblowing if the initial concern had not been responded to. Employees who came into frequent contact with their immediate supervisor were more likely to get a positive response to their concerns, and to be less likely to go outside the organization with their concerns (Skivenes and Trygstad 2010).

So the wider context counts when it comes to the likelihood that an employee will raise concerns. If wrongdoing is sufficiently bad, if it is observed, and if the employee thinks that by raising a concern they can stop it, without suffering personal detriment and harm, they are more likely to act. Employment protection, the right and support to raise concerns, and a workplace culture where it is expected, rather than mandated, that employees will raise concerns and be supported when they do, significantly influence the likelihood of reporting. Employees in Skivenes and Trygstad’s study were working in the Norwegian public sector, where there is a high rate of trade union membership (86 per cent of public sector employees are unionized). In Norway, employees have a constitutional right to raise any concern not deemed confidential in law, and they have the right to report misconduct. Compared to the US and UK, these employees have strong protection against unfair dismissal. Employee rights in Norway support whistleblowing activity: ‘Norwegian employees, to a great extent, perceive their whistleblowing activity as positive and effective’ (Skivenes and Trygstad 2010, p.1091).

The Australian survey (Brown 2008), referred to earlier, found the decisions of public sector employees to blow the whistle were strongly influenced by the culture of their organization, as well as by the perceived seriousness of the wrongdoing and by their belief as to whether reporting the wrongdoing would serve any good purpose. Reporting was more likely when employees believed the wrongdoing was serious and frequent, when they had direct evidence of the wrongdoing, and when it affected them personally. If the wrongdoing involved a lot of people, or the perpetrators were senior to the whistleblower, then the employee was less likely to report (Brown 2008).

Reporting wrongdoing, and getting it put right, are very hard where bad or illegal practice is commonplace and tacitly tolerated, or where whistleblowing procedures feel like an obstacle course designed to trip up those bold enough to try and use them. When they are confident their concerns will be listened to, employees are more likely to speak out (Brown 2008). The main reasons for not reporting is a belief that nothing will be done about the wrongdoing, or that the employee will suffer reprisal – in other words, that the messenger will be shot while the message goes unheeded. Speaking truth to power is always a tough call.

UK WHISTLEBLOWING IN LAW

Providing legal protection to the whistleblower making a public interest disclosure has been the stated aim of statute internationally for some time. In the UK, the Public Interest Disclosure Act 1998 (PIDA) was intended to protect individuals who make certain disclosures in the public interest. Here, from a legal point of view, whistleblowing is justified if a worker has a reasonable belief that a type of wrongdoing specified in the legislation affects the public interest. In changes implemented under the Enterprise and Regulatory Reform Act 2013, UK whistleblowers have protection from victimization by co-workers, as well as employers.

In the UK, the operative provisions of PIDA are contained in Part IVA of the Employment Rights Act 1996. They apply to both the public and private sector and cover most, but not all, workers. (In 2016, members of the armed forces, intelligence services and volunteers do not have protection under the Act’s provisions. Some self-employed contractors may have protection under PIDA, although most do not.) There is no statutory right to disclose in the UK, although a contractual right may exist. Types of disclosure that can give rise to employee protection are called ‘qualifying disclosures’ and cover matters such as where the worker reasonably believes the concern might be a crime; or where there has been a failure to comply with a legal obligation; or one concerning potential damage to the environment; or danger to the health and safety of a person. Most protection under this law is given to those who disclose information internally. However, workers can disclose to a person prescribed in the relevant regulations if they reasonably believe that the matter falls within that person’s remit, and that the information and any allegation contained in it are substantially true. Wider disclosures can be made if the worker fulfils additional requirements – for example, they are not disclosing for personal gain; they have already disclosed the information to the employer (unless they believe they would suffer detriment, or the employer would destroy evidence if they were alerted). Detailed provision is also made for the external disclosure of information about exceptionally serious wrongdoing. The worker has a right not to suffer detriment for making a protected disclosure. But retaliation against the whistleblower is not a criminal offence in the UK, and it is the case that whistleblowers may find themselves vulnerable to victimization and dismissal following their speaking out.

How far these legal provisions have protected UK employees is a moot point. De Maria (2006, p.647) called whistleblowing legislation the ‘state management of dissent’, and it is certainly the case that a number of NHS whistleblowers have found their concerns managed by their employer without any protection from whistleblowing legislation. Lewis (2008) regarded PIDA’s protection of whistleblowers as inadequate. He argued that employers should be under a statutory duty to establish and maintain effective reporting procedures; and that employers should not impose a contractual duty upon employees to report in the absence of a proper procedure. Lewis called for legislation to relieve people of civil or criminal liability if they make a protected disclosure. Disclosures are only protected if the person reasonably believes them to be correct: should that reasonable belief turn out to be incorrect, defamation proceedings can be brought against a worker making the disclosure. That person might then have to rely on the defence of qualified privilege (which permits certain persons to make statements that would be considered slander or libel if made by anyone else). Lewis (2008) has suggested that a defence of absolute privilege should be available to the whistleblower, as well as specific statutory protection against post-employment detriment – for example, an employer refusing to provide a reference for the whistleblower.

As it stands, PIDA is convoluted law. A person contemplating making a protected disclosure under it is well-advised to take legal advice before, and not after, raising the concern. The Health Committee of the House of Commons acknowledged some of the Act’s limitations. While PIDA is supposed to provide protection against employee detriment, and its effect to be deterrent rather than restorative, its complexity is such that success in a case brought under PIDA can by no means be guaranteed (Pattenden 2003; HOC 2015).

Over and above the provisions and limits of this particular statute, there are contrasting opinions on what whistleblowing legislation and duties exist for. One perspective is that of the employee acting in line with their individual conscience to counter wrongdoing (like, say, the heroic slayer of a mythical dragon). Less seductive, is the view that whistleblowing statute serves as a management tool to control the workforce (Tsahuridu and Vandekerckhove 2008). The first view regards whistleblower protection as promoting individual responsibility and autonomy in the workplace. The second understands whistleblower protection to be de facto protective cover for the organization, as it offloads responsibility for holding the moral compass in the workplace from employer onto employee.

In evidence to the Health Committee of the UK House of Commons (HOC 2015), the chief executive of the UK charity PCaW said that PIDA acted more as a deterrent than a remedy: if an employee has to have recourse to PIDA’s provisions, then his or her employment prospects are already substantially impaired. Organizational whistleblowing policies may use PIDA as a legal firewall – do this, at the right time, in the right way, in the right sequence, or face the consequences, if you fancy your chances taking us on.

PARADOXES IN WHISTLEBLOWING POLICY AND PROCEDURES

To be used and useful, people need to know about, understand and have confidence in an organization’s whistleblowing policy, and in those who manage it. It requires a lot of the employee, in fulfilling their side of the employment contract, when they find they have to negotiate, with all the care of someone ploughing a field of activated landmines, the tripwires of their employer’s whistleblowing policy and procedures. When organizations have a whistleblowing policy in place solely to meet compliance, regulatory or legal requirements – as a procedural fig leaf we might say – the tacit suppression, discouragement or punishment of dissent is experienced as the organizational actualité, whatever the policy says.

Vandekerckhove (2011) identified five paradoxes in managing whistleblowing. The first is the truism that all the grand talk about whistleblowing protection doesn’t always get – that whistleblowing policies work best in organizations that don’t really need them; that is to say, in places where early corrective action is taken, where and when needed. Kaptein (2008) put forward seven features of an ethical organizational culture, which were:

1.clarity (of normative expectations laid on employees)

2.congruency (with these expectations) by managers

3.feasibility (how far the organization creates the conditions that enable employees to meet the expectations)

4.supportability (how far the organization creates support mechanisms to meet expectations)

5.transparency (employees can only be held accountable if they knew the consequences of their actions)

6.discussability (the opportunity employees have to raise concerns and issues)

7.sanctionability (enforcement of sanctions to wrongdoing, rather than turning a blind eye).

Organizations delivering on these ethical dimensions are not going to need to rely on the paraphernalia of policy, procedures, helplines for whistleblowers and all the rest – but they will have all of that because they manifest ethical virtues that deal with problems before they threaten the organization, and the people it serves.

Vandekerckhove’s second paradox concerns anonymous reporting channels – something that whistleblowers often say they want but which don’t always help. Hunton and Rose (2011), for instance, found that anonymous reports were seen as less credible by managers receiving them, and fewer resources were allocated to investigating and rectifying reported wrongdoing.

The third paradox lies in rectifying the problem the whistleblower raises, which may itself create other problems for the organization’s managers. The stakes are higher if the whistleblowing matter threatens the organization; if it does, whistleblowing is less likely to be effective (Near and Miceli 1995). The fourth paradox is the loose procedural talk about the right to blow the whistle, whereas it is, in reality, an implied or disguised duty, as the House of Commons committee referred to earlier made clear. When an issue blows up, those who knew but did not report it are judged, blamed and held to account, no matter what fear of reprisal they may have had about raising the concern in the first place. The right becomes a liability. The fifth paradox is the response to whistleblowing and to the employee raising concerns: this itself can lead to detriment, reprisal and wrongdoing against the employee. These paradoxes are in perfect symmetry: the employee is damned if they do, and damned if they don’t.

WHAT HAPPENS WHEN PEOPLE WHISTLEBLOW?

The outlook isn’t always a rosy one for the whistleblower. There is no certainty that anything will change after a whistleblower has put themselves through the procedural mill to raise their concerns. Momentary acclaim for being the heroic martyr who took on the iron cage of a dehumanized bureaucracy won’t pay bills, repair relationships or develop new careers if the whistleblower finds themselves dealing with career ruin, bankruptcy, depression or alcoholism (Alford 2001; Rothschild and Miethe 1999).

The UK House of Commons Committee of Public Accounts, having taken evidence from four government departments (Education; Health; Revenue and Customs, Ministry of Defence), observed in its 2014 report on whistleblowing that ‘…whistleblowers who have come forward have had to show remarkable bravery’ (HOC 2014, p.3). It commented that the treatment of some whistleblowers had been ‘shocking’, with whistleblowers sometimes left unprotected from victimization. The Committee noted the ‘startling disconnect between the generally good quality of whistleblowing policies in theory and how arrangements actually work in practice’ (HOC 2014, p.6).

When taking evidence for this report on whistleblowing, the chair of the UK House of Commons Public Accounts Committee (PAC) remarked:

I will just say that we tried to get a number of whistleblowers whose evidence has been proven credible to come and talk to us about their experience… We had somebody from HMRC [Her Majesty’s Revenue and Customs] who would not come, somebody from the MOD [Ministry of Defence] who would not come, somebody from local government who would not come, and also somebody from the police. That shows there is still a culture of complete fear out there…which demonstrates the difficulties that we are facing. (PAC 2014)

Giving evidence before the PAC, Kay Sheldon, who had been a board member of the Care Quality Commission (CQC), the health and care regulator in England, described some her experiences of whistleblowing to the CQC:

…I started to raise some quite serious concerns about CQC – about the leadership, the management and the culture. I felt that the organisation was at risk of not fulfilling its statutory duties, so they were really quite serious concerns. Unfortunately, because the culture was quite oppressive, those concerns were not well received. The more I tried to get them taken seriously, the more I was subject to inappropriate behaviour, such as being excluded from roles that had been agreed. My mental health was questioned. I am obviously open about the fact that I have had mental health issues, but that was used against me. A secret mental health report was done on me…

As I was really very concerned that the organisation was failing, and failing patients – people who use services – I felt that I had to go outside the organisation. I approached the National Audit Office, the Department of Health and the Mid Staffs public inquiry, and it was the inquiry that responded positively… [U]nbeknown to me, the chair of the Care Quality Commission wrote to (Secretary of State for Health) asking for me to be removed. I did not know that had happened. I was called into the Department of Health and told that there was going to be an independent review, and I was asked not to attend any further board meetings. It was pretty clear to me that they wanted me out of the picture as fast as possible, so I declined. I said I wanted to continue going to board meetings, which I did. I had someone with me, because I knew that would be necessary.

The review that was set up was not independent; I think that is the thing to say. Frankly, it was a deliberate hatchet job; there is no other way to describe it. I met with the person doing the review for about an hour, and I was told it was going to report within 10 days, but it didn’t. It dragged on. I didn’t hear anything else, but when I got my personal data, I found out that the person doing the review, the CQC and the Department of Health were in quite a lot of contact. I was completely out of it. I didn’t have a voice. (PAC 2014)

Asked if she thought her concerns would be dealt with differently (than they were in 2011–2012), Kay Sheldon was unconvinced they would be:

I am not convinced, because of the extreme things that happened – the fact that I did raise some very serious issues and really all they were intent on was to get rid of me. I don’t think the Department of Health and the officials there have really taken responsibility for what happened. Personally, I think that if they did – if they did engage with me or other whistleblowers – that would really help to change things, but so far they haven’t done it, frankly. (PAC 2014)

As the messenger taking the hit for her message, Kay Sheldon was subjected to referral, without her knowledge, for psychiatric assessment. Sheldon recounted her short conversation with the director of a private occupational health service paid by the Department of Health to carry out this covert, Kafkaesque assessment:

…(the Chair of the CQC) told me that I had been referred to this occupational health company, Medigold, which I was quite surprised about. I phoned up simply to cancel the appointment and had a 10-minute conversation to say, ‘I don’t think I need to see a doctor, but a bit of support would be nice.’

After that 10-minute conversation with the owner of Medigold, he wrote this three-page letter saying that I probably had paranoid schizophrenia and that he would speak in confidence to the medical director and that my medical notes should be obtained in confidence. I just discovered this in my personal data. I did not know. (PAC 2014)

Sheldon’s account of her experiences at the hands of a government regulator highlights a number of typical retaliations that may be visited on the whistleblower after they raise their concerns. First is an allegation or vague innuendo that questions the whistleblower’s mental health status (‘mental health problems run in the family’… ‘she was always difficult’…). Second are the shadowy, behind-the-scenes, not quite in daylight, machinations of the organization or government department, aimed at reconstructing the reality the whistleblower speaks out about, thus closing down the disclosures and marginalizing the person making them, before they have been heard. Third are the systemic ‘blind eye’ or ‘deaf ear’ responses (discussed in the following chapter) of other responsible organizations, who turn away from the disclosures, or turn upon the person making them.

RETALIATION AND RETRIBUTION

A whistleblower is well advised to entertain the possibility – indeed the expectation – that their organization, whatever its public proclamations and statutory obligations to whistleblowers, will react harshly to them, the messenger, before turning attention to the message they bring. The nature and extent of retaliation has nothing to do with any personal characteristics of the whistleblower (Near and Miceli 1996), even though ad hominem attacks on their character, honesty and competence are not uncommon.

The more serious the allegation the whistleblower makes, the more likely it is that they will suffer detriment. Kay Sheldon’s experience at the hands of the CQC and Department of Health, recounted above, is testimony to this. The whistleblower is at greater risk of detriment when the wrongdoing they allege is very serious; when the investigation was inconclusive; and when more than one person was implicated in the wrongdoing. Retaliation is more likely if the matter goes outside the organization (external whistleblowing), or when those accused of wrongdoing work at a higher organizational grade than the whistleblower. In these circumstances, vengeance is more likely to be exacted on the whistleblower (Brown 2008).

Retaliation has been described as ‘taking an undesirable action against a whistleblower – in direct response to the whistleblowing – who reported wrongdoing internally or externally, outside the organization’ (Rehg et al. 2008, p.222). Retaliation can be informal, official, overt or covert. Even though legal protection for the whistleblower exists across many jurisdictions internationally, Tsahuridu (2011) observed that retaliation, threats and retribution seem to have increased, even as whistleblowing protection has grown. Retaliatory acts are not minor slights or insignificant trifles. The litany of loss that may be the lot of the whistleblower includes losing their job (being sacked, forced to resign or retire early); being blacklisted; getting a poor performance evaluation after they blew the whistle; increased management surveillance of their work; being criticized or given the cold shoulder by colleagues. The risk profile that the whistleblower establishes is not one that many organizations want to absorb (Rothschild and Miethe 1999). A whistleblower spells trouble.

The severity of the backlash is greater if the whistleblower is not a supervisor or manager, if they go outside the organization to raise their concern, or if they blow the whistle on something serious (Hedin and Månsson 2012; Jos, Tompkins and Hays 1989; Rothschild and Miethe 1999). Referral to a psychiatrist is not uncommon (as in the case of Kay Sheldon discussed above), resulting in the whistleblower being diagnosed with a mental illness (the murky label of ‘personality disorder’ proves popular) that will inevitably scupper any future chance the employee has of resuming, still less progressing in, their profession, sector or job of choice. Official reprisals such as demotion, and legal or quasi-legal retribution such as surveillance, the scouring of historic expense claims for minute discrepancies that were previously passed for payment, are the familiar modi operandi of an organization in witch hunter mode, a far cry from the ‘lessons have been learned’, ‘changes have been made’ pronouncements of those in charge of the organization after a disaster has come to public attention (Ash 2011, 2013).

Organizational management of dissent has many means of silencing in its toolkit. Official channels, such as the use of organizational grievance procedures or the courts, may offer the promise of justice to the employee, but achieving justice is compromised when the vast power resources of the organization are mobilized against the whistleblower, who may find they are in danger of losing their home as a consequence of their whistleblowing. Dissent can effectively be neutralized by, for example, setting up inquiries, reviews and investigations that are prolonged and protracted, exhausting public patience and attention. Tony Blair, past UK Prime Minister and himself no stranger to controversy, offered private (subsequently published) advice on disaster management to Rebekah Brooks, then chief executive of the global media conglomerate News Corporation. At the time, Brooks was under intense public scrutiny for her role in phone-hacking by the Murdoch-owned tabloid press in the UK. In an email to her boss James Murdoch on 11 July 2011, Brooks said Blair gave her this advice to manage the maelstrom she found herself in:

1. Form an independent unit that has a outside junior counsel…a great and good type, a serious forensic criminal barrister, internal counsel, proper fact checkers, etc. in it. Get them to investigate (Brooks) and others and publish a…report. 2. Publish part one of the report at same time as the police closes its inquiry and clear you and accept shortcomings and new solutions and process and part two when any trials are over. (Rebekah Brooks, email on Tony Blair’s advice, The Guardian 2014)

From the point of view of the corporation, Blair’s (presumably pro bono) advice to Brooks was a masterclass in dissent management and blowing out the critical voices. In the event, Brooks and her employers marshalled many million pounds’ worth of top-end legal counsel; Brooks was acquitted of five charges of phone-hacking, conspiracy to commit misconduct in a public office, and to pervert the course of justice, relating to her time as editor of two UK tabloids and as head of the Murdoch-owned company (Davies 2014). People making allegations prior to this case, including many in the public eye, had been subjected to sustained intrusion and vitriol in critical media coverage of their lives, sustained over many years. This is, of course, the type of retaliation that some people raising concerns about the NHS have suffered and where, again, millions of pounds (of public money) have been spent on legal fees to manage dissent, by silencing it (Campbell 2014).

FACING INTO FEAR

Using fear as a weapon to silence is very effective. In the public inquiry into the failings of the Mid Staffordshire NHS Foundation Trust in England, one of the people to speak out at Stafford Hospital was Nurse Donnelly, who was referred to above. Described as ‘a most impressive and courageous witness’ by Robert Francis, the chair of the public inquiry, Nurse Donnelly had at first been reluctant to complain about fabricated patient records, for fear of repercussions (Francis 2013a, p.235). Her fears were well-founded. In her evidence to the inquiry, Nurse Donnelly described being harassed by colleagues, being threatened, and:

…people were saying, ‘Oh, you shouldn’t have done this, you shouldn’t have spoken out.’ And then physical threats were made in terms of people saying that I needed to – again, watch myself while I was walking to my car at the end of a shift. People saying that they know where I live, and basically threats to, sort of, my physical safety were made, to the point where…at the end of a shift…at night I would have to have either my mum or my dad or my husband come and collect me from work because I was too afraid to walk to my car in the dark on my own.

Nurse Donnelly described how this threatening behaviour continued after she had reported her concerns:

It was slightly more subversive and I think people were slightly more guarded in how they were doing it. You know, on one particular occasion another staff nurse followed me into the toilet which was also our locker room and locked the door behind her, locking me in, and demanded to know if I had a problem with her and if I was going to say anything about her, and basically threatening me not to do so if I did… So people were still doing things, but not so publicly… They were doing it slightly more discreetly… (Francis 2013a, p.236)

Nurse Donnelly resigned from her job in Mid Staffordshire NHS Foundation Trust some time after she had faced out her fears of retaliation. Staying in or returning to their job is not something that many NHS whistleblowers get to do, whatever their wish. Dr Phil Hammond, an England-based registered medical doctor and journalist, has supported many NHS whistleblowers since 1992. None has returned to their job or previous employment (Hammond 2015). It took Dr Stephen Bolsin, the consultant anaesthetist at the Bristol Royal Infirmary (BRI) who raised concerns about death rates of children undergoing heart surgery, six years to get his concerns heard and to see a drop in mortality rates. Bolsin became the butt of considerable hostility from consultant paediatric surgeons at the BRI; his concerns were ignored until he took these to the media.

THE SMELL OF SALEM

When retaliation is significant, the whistleblower pays what (Alford 2001, p.10) said were ‘…the terrible costs of going up against the organization, costs most of us are not even aware of because they are not apparent until one crosses an invisible line’. The whistleblower may find themselves subjected to small, individually minor, but collectively destructive acts of victimization in the aftermath of their raising concerns. These can become witch hunts with the smell of Salem about them.

The US Government Accountability Project (GAP), an American non-profit, non-partisan, public interest law firm that has provided legal representation to many US whistleblowers, including Edward Snowden, commented that, ‘The uglier the tactic, the more effective it is at silencing critics and scaring off anyone else who might challenge abuses of power’ (Devine and Devine 2010, p.7). Pernicious silencing tactics include bringing conflict of interests charges against the whistleblower – for example:

•alleging the whistleblower was doing the very same act that they are complaining about

•raiding the whistleblower’s home to seize computers and electronic devices

•telling the whistleblower they must remain silent

•attempting prosecution for alleged false statements solely based on hearsay allegation by a mediator sworn to confidentiality

•unsupported allegations of mental illness, revenge, depression, drug misuse

•prolonged garden leave

•blacklisting and whispering campaigns of many years’ duration

•classifying information years after the fact and then charging the whistleblower post hoc with disclosure of sensitive information

•the ‘smokescreen syndrome’ (kicking up sand about an unrelated and irrelevant matter to take attention away from the disclosure).