March 2014

The know zone

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Four recommendations in the recent report on whistleblowing by charity Public Concern at Work are particularly significant for schools and colleges, says Richard Bird.

Do the right thing

It is easy to think that whistleblowing, because its name sounds a little casual and unofficial, is something that applies elsewhere. But history shows that it is just as necessary in schools and colleges as in other public services – and potentially it is good for schools and for their employees and students. Child abuse and fraud, in particular, are exposed faster in a whistleblowing culture.

Whistleblowing is regulated by the Public Interest Disclosure Act 1998, which makes it possible for an employee to make a claim against an employer for victimising or dismissing him/ her for making a public interest disclosure. In addition, the statutory cap on compensation for unfair dismissal is removed.

This protection was widened in 2013 to include failing to prevent victimisation by fellow workers. The law recognises that whistleblowing has to negotiate a difficult path between allowing employers to deal with things in their own way, the fundamental contractual duty of confidentiality within the employment relationship and the public interest.

Disclosure is limited to criminal offences, breach of a legal obligation, miscarriage of justice, health and safety, damage to the environment and the deliberate concealment of any of these.

The law assumes that the employee will normally turn first to the employer. To go beyond an employer to a regulator such as the National Audit Office, the allegation has to be substantially true. To bypass employer and regulator, the allegation has to be made in the public interest rather than for private gain, should be valid and exceptionally serious, and there must be no other way of dealing with the matter.

Effectively, you must have tried and failed to interest the employer and the regulator or you must believe that the employer, or associate, is criminally corrupt.

‘Reasonable belief’

As a result of recent changes to the law, the person making the allegation must ‘reasonably believe’ that the disclosure is in the public interest; if the allegation is made with malice, although there is now protection, an award may be reduced.

While whistleblowing itself is protected, ‘related acts’ are not, as the IT teacher who hacked into a school system to demonstrate the ineffectiveness of its security found out to his cost.

The recommendations of the Whistleblowing Commission, an independent review by the charity Public Concern at Work to examine the efficacy of whistleblowing in the workplace, were published at the end of 2013. They are many and various and may not find favour with government.

Four are particularly significant for schools and colleges. First is that disclosure should not be made mandatory. There is an argument that the Teachers’ Standards make it mandatory to report child abuse by implication but the commission felt that agencies may be overwhelmed by ‘suspicions’ rather than realities.

The second is that the law should be changed on settlement agreements to add the clause ‘no agreement should preclude a worker from making a protected disclosure’ – so no ‘gagging clauses’.

The third recommendation is that the protection should be extended. As far as schools are concerned, the important part of this recommendation is that it should be extended to job applicants and non-executive directors. It is not clear whether and how far this would apply to governors and academy advisory committees if it ever came into force but there seems to be no reason to exclude them.

The fourth is that the list of topics for whistleblowing should be made non-exhaustive, like a gross misconduct list in a disciplinary procedure, but that two new categories should be added: ‘gross mismanagement of funds’ and ‘serious misuse or abuse of authority’. These last two recommendations have significant implications for schools.

There have been a small but significant number of situations where misuse of funds has been discovered in schools. Sometimes this has been a simple error. Sometimes it has been simply fraudulent. There is a concern that there may be more potential for fraud in free schools where governors and trustees have more power over their employees and perhaps see themselves as ‘owning’ the school rather than being trustees for the public. Time will tell.

There would be a great deal to be said for schools incorporating these recommendations into their own policies, regardless of whether they eventually become law. It is a very good way of making sure that people listen to concerns, think twice, and ask before they plunge into some scheme that is on the edge of legality.

Whistleblowing is not only bad for the dodgy operator; it is good for the institution, for those in authority in it, and for those the institution serves.

  • Richard Bird is ASCL's legal specialist