Siobhan Bishop: Welcome to our podcast on whistleblowing and where the law meets psychology. Barely a day goes by without a story in the press centred on employees either not raising a serious issue, when they ought to, or not being listened to when they do. So why don't people speak up, and if they do, why aren't they listened to?
Today we're joined by Mark Greenburgh, a partner in the Employment & Equalities team here at Wragge Lawrence Graham & Co and also Dr Michael Drayton, a clinical psychologist who is an expert on resolving workplace conflict from Opus Performance.
Mark, first of all let's start with looking at why whistleblowing is such an important issue for organisations. Why does whistleblowing matter so much?
Mark Greenburgh: Well, there are a number of reasons Siobhan.
Firstly, to improve the performance of the organisation both internally and to our users and customers.
Secondly, in terms of reputational risk. The regulators will take a close interest in whistleblowers and things that go wrong and, of course, shareholders and stakeholders take a close interest too.
Thirdly, employee engagement and morale. People want to work for an organisation that listens to concerns which are raised and which doesn't have a climate of fear.
Fourthly, corporate governance. It's really important to make sure you know where the risks are and how they are being managed, which brings me on to litigation risk.
Of course the cost of getting it wrong can be that legitimate complaints are not resolved at an early stage or, in the worst case scenario, you end up in litigation itself which means costs, and that can be reputational costs, but also legal expenses and, of course, damages, which have to be paid out if whistleblowers aren't listened to or suffer a detriment as a result of having reported their concerns.
Siobhan: So, it clearly has very wide reaching implications for both organisations and individuals if we don't get this right. I think it's worth just running through the law and how the law deals with this issue and the legal aspects involved.
Mark, how is whistleblowing defined under the law?
Mark: Ok, so there are two issues. The first is what is the definition of, what we lawyers call, a protected disclosure and secondly, what happens when one is made?
A protected disclosure takes place when an employee or a worker, which has an extended meaning, makes a disclosure of information in which they have reasonable belief that it shows one of a number of relevant failures and the disclosure has to be made to a certain type of person, usually the employer, but there are lists of prescribed people, a minister of the crown, an external regulator, for example, and the disclosure needs to be made in the public interest, not for personal protection or gain.
Once a disclosure has been made, then the individual who has made it is protected from any detriment, or in the worst case, dismissal by their employer. Essentially, the courts and tribunals try to make it as uncomplicated as possible to make a disclosure and focus more on what the consequences are where one has been made.
Siobhan: So even though there are a number of hurdles for employees to get over before their disclosure is protected, there isn't a requirement that the disclosure is made in good faith. There used to be, but that is no longer the case. But as you say, the worker does need to have a reasonable belief that disclosure is in the public interest and what does that mean?
Mark: Ok, there's a few points there. The first thing is that the good faith requirement has gone in terms of proving that a disclosure has been made but a tribunal will still look at whether there was an ulterior motive, or bad faith, in having made a protected disclosure when it comes to the award of any damages.
Secondly, you touch on the public interest. This was introduced by Parliament a couple of years ago in order to try and sift out protected disclosures which really only related to the way in which an employer was dealing with that particular employee. So, in other words, grievances and the idea behind it is that the disclosure needs to have wider application than just that person involved. We're yet to see very many cases that have turned on the question of public interest, but the first case in the Employment Appeal Tribunal has shown that a group of employees within an organisation does count as a public interest test.
The third part of that is about having reasonable belief. It's not necessary for somebody to know the law, they just need to have a reasonable belief that one of the relevant factors has been shown. If, however, you are going to go outside of the organisation and outside of your whistleblowing policy, you need to have reasonable belief that the allegations are substantially true which is a higher threshold.
Siobhan: So, what are the liabilities that an employer can face if they find themselves on the wrong end of the whistleblowing case?
Mark: Well, the answer is it can be expensive. Firstly, there's no qualifying period necessary to bring a claim under the whistleblowing rules. Also, a claimant can make an application for interim relief. That is to say, to be put back into their job during the period in which the claim is going through the courts. Thirdly, there's no cap on compensation so somebody can receive a very substantial amount of money both for their loss of earnings and any pension loss and, finally, there can be an award made for injury to feelings or damages, just as in any other type of discrimination claim that comes before the courts.
Siobhan: So, bringing this all together, what are the key practical suggestions and advice that you give to a client or an organisation looking to protect itself and ensure good practice?
Mark: I think the first and most important thing is to have a policy. Having a policy will identify who is responsible for whistleblowing within the organisation and, hopefully, will also include the communication with the whistleblower to let them know what's happening at each stage. There's nothing worse than a whistleblower thinking that their complaint has disappeared into the system and will never be heard of again. You need to make sure that your whistleblowing policy takes account of other external policies, for example, health and safety or any interaction with your regulator, as well as equal opportunities and grievance policies internally.
Siobhan: Thanks very much Mark for those practical suggestions on the legal side. I would now like to bring in Dr Michael Drayton to highlight the psychological aspects of whistleblowing and to also look at some of the issues which impact on whether people are willing to blow the whistle and the response that organisations make to any disclosures.
So, welcome Mike. I'd like to start by asking you to tell us what kind of people will blow the whistle and why they do it and, indeed, why some people will not blow the whistle when there's something clearly wrong.
Dr Michael Drayton: That's a really interesting question, Siobhan, because if we look at one of the more famous whistleblowing scandals of the past few years it's Mid-Staffs and there we have a hospital and we have a, you know, a group of nurses who all wear the same uniform and kind of look like nurses, but some blew the whistle and some didn't and why is that?
Well, first of all I think it's useful to make two distinctions. The first distinction is this, between ethical whistleblowers, they're people who see wrongdoing in an organisation and speak up about it and they're very brave, and vexatious whistleblowers, they're people who often cause the wrongdoing in the organisation and blow the whistle to distract the organisation from their own wrongdoing and they're in a minority, there's not many of those people around. So, that's the first distinction we need to make.
The second distinction is between internal whistleblowing, that's where the person raises the problem or the wrongdoing within the organisation and that's a really, really good thing because organisations can then do something about it. That's to be distinguished from external whistleblowing, which is where the person goes outside the organisation, often to the media, and that's a really, really bad thing in terms of lots of additional problems such as reputational damage.
So, I think it's within the interest of the organisation to actively encourage internal whistleblowing to prevent the person from going outside the organisation.
But the second part of your question is why do some people blow the whistle and others don't? Because whistleblowing is an incredibly irrational process and it's often driven by emotions. Whistleblowers, on the one hand, feel a sense of loyalty to the organisation and, on the other hand, they see something wrong happening and they feel a compulsion to do something about it, to do the right thing and all those thoughts and feelings are kind of processed and swirl around until they eventually come to a point where they have to make a decision to keep quiet or to blow the whistle.
Now there's years and years and years of research in social psychology that says most people will decide to keep their mouth shut. There are issues such as diffusion of responsibility for example. So, back in 1964, a bar manager from Queens in New York, called Kitty Genovese, was murdered and when the police came to investigate the crime they found out that 37 people had witnessed various bits of the murder but none of them came forward and, of course, when the police asked them why didn't you intervene or why didn't you report this to the police you can guess what they said, they said, "Well we thought somebody else was doing it". That often happens in situations that give rise to whistleblowing.
There's also a process known as Groupthink where people join an organisation and because they're working together they begin to think in the same way. Especially in an organisations where there's wrongdoing. Some people join the organisation and see the wrongdoing happening and they think, "Oh, I don't like this", and they leave to be replaced by somebody who joins the group and joins in with the wrongdoing. So, over time, that's how wrongdoing gets perpetuated and whistleblowing doesn't happen.
There's also lots of research in the area of group conformity that clearly demonstrates that most people just kind of go along with what everybody else is doing. There's a fascinating study where a woman is placed in a room with a group of confederates of the experimenter. She's asked to fill a form in and as she's filling the form in smoke starts coming under the door, so the building is obviously burning down, but of course the confederates don't react to this and this woman looks around, sees nobody else is reacting and so she doesn't react and guess how long it takes her before she stands up to walk out of the room? Most people would say a couple of minutes, five or ten minutes. It's 20 minutes. And that experiment's been replicated time after time after time.
So, to come to the point and in answer to your question, whistleblowers are exceptional people, on the whole. You don't get many whistleblowers, so if you do get a whistleblower in your organisation, you should listen to them.
Siobhan: So, it also seems that if an organisation is really keen to deal with problems and resolve them internally that they must support people in raising these issues. How can an organisation encourage this atmosphere and how can they make sure it works in practice?
Michael: Organisations need to look at two factors if they want to support whistleblowers. The first of these factors I call structures. They need to look at the structures in the organisation and Mark has already spoken about this, so an organisation needs a good whistleblowing policy.
For example, if you want to blow the whistle the person who's got the problem needs to know who to talk to and have a sense that they'll be taken seriously and listened to. However, in my experience, most organisations kind of get stuck with that and they don't go onto the next phase which is looking at the culture of the organisation because often organisations have really great whistleblowing policies which sit on a shelf gathering dust.
So, in order for people to actively use good whistleblowing structures, good whistleblowing policies, there also needs to be a culture of communication, enquiry and listening within the organisation and that needs active work, active training and active encouragement. So for example, if you want to change the culture it has to start at the top. It has to start with the chief executive, or their equivalent, making absolutely clear straight forward statements that they're not willing to tolerate bad behaviour of whatever kind within their organisation and that if somebody reports bad behaviour they will be supported and rewarded for that. It has to start at the top.
In my experience, organisations also have to look at the middle management and training them in some fairly basic active listening techniques so that, if somebody does come to them, the middle manager doesn't panic and shut the person up. On the contrary, the middle manager should be quiet, thank the person for reporting the wrongdoing and sit and actively listen to them and that is incredibly helpful because it defuses a lot of emotional impact of the incident, which calms things down, and it also helps the organisation gather information about the problem that the person's talking about.
So, in summary, organisations need to look at two things. Structure and culture.
Siobhan: Ok, so if an issue has been raised, what are the potential blockers that an organisation might face in terms of resolving those issues successfully?
Michael: Thank you, that's a good question. When problems arise in organisations there are usually two kind of overarching theories that organisations use to explain those problems.
The first one is the bad apple theory and what that means is that our organisation is really pretty good, we're ethical and we're really fantastic, however, in an organisation of our size you're bound to get one or two bad individuals. For example, there was the case of Sabrina Harman. Sabrina Harman was a female US soldier whose face was posted across the media in the world standing grinning over a dead Iraqi prisoner at Abu Ghraib in Iraq and that was the US army's defence. They said, on the whole we're an ethical organisation, but we have a few bad apples, like Sabrina Harman, but, of course, Sabrina Harman wasn't a bad apple. When you looked at her background, she had a perfectly normal upbringing, she had a very good army carer and her explanation was, well, everybody behaves like this at Abu Ghraib and my smile wasn't a genuine smile, somebody was taking a picture and they just said smile for the camera. So that's one explanation, it's a bad apple theory.
The opposite explanation, which is often more helpful, is the bad barrel theory. So that means that basically decent good individuals enter an organisation and because that organisation is corrupt, or is bad in some way, they slowly become seduced into bad ways of working and slowly become corrupted. An example of that would be Enron, which was undoubtedly a corrupt organisation that corrupted most of the people who came to work there.
So understanding that, we can understand the two main blockers that organisations face when dealing with whistleblowers. Now, in my experience, the problems that give rise to whistleblowing are systemic ones. It's almost like if you use the bad apple theory and you get rid of someone, you manage somebody out of the organisation, it's only a matter of months that the new person recruited to replace them starts behaving in the old way, so you have to work at changing the system and often just replacing individuals doesn't solve the problem. So, I think it's helpful, you know, if you have a problem with whistleblowing to keep an open mind and think, well, it might be the individual's fault, but then again, it might be something within that team or within that part of the organisation that needs tackling rather than just moving the individual on.
Siobhan: Thank you very much indeed to Mark and Dr Michael Drayton for a fascinating insight into the legal and psychological issues which are clearly at play in any whistleblowing scenario.
If you have any queries on whistleblowing or how to protect your organisation, please do contact Mark Greenburgh and thank you very much for joining us today.