Directory UMM :Data Elmu:jurnal:I:International Journal of Educational Management:Vol13.Issue3.1999:Emerald Library Table of Contents_files:
A whistleblowing code for educational institutions
Gerald Vinten
Southampton Business School, Southampton, UK
Keywords
Codes of practice, Colleges,
Employment law, Ethics,
Whistleblowing
Abstract
New legislation to protect valid
whistleblowing in the public interest is on the statute for the first
time in the UK, and provides a
valuable guide to sound practice.
This, together with the Nolan
Committee on Standards in Public
Life, and reports of the National
Audit Office, indicate what should
be expected from educational institutions. The law only protects a
limited range of high profile issues, but there are concerns
about educational standards peculiar to the sector, not protected
by the statute, but which need to
be aired. The best protection here,
which is to the benefit of employer
and employee, is to establish
codes on whistleblowing to include concerns on educational
standards. This will avoid the
types of recriminations to which
reference is made in the case
studies of educational whistleblowers, with the traumas involved
and the high and unnecessary cost
to the public purse.
The International Journal of
Educational Management
13/3 [1999] 150±157
# MCB University Press
[ISSN 0951-354X]
[ 150 ]
The essential ethos and values of higher
education and education generally need constant reiteration, with corrective action taken where necessary. One development in
maintaining the culture was the introduction
of Richard Shepherd's private member's Bill,
the Public Interest Disclosure Bill, with the
aim of protecting whistleblowers. The Bill
aimed ``to protect individuals who make
certain disclosures of information in the
public interest; to allow such individuals to
bring action in respect of victimisation; and
for connected purposes.'' The Bill had government, and indeed all party support, with
the endorsement of the CBI, Institute of
Directors and TUC. Ian McCartney, Minister
of State at the Department of Trade and
Industry, led for the government towards
agreement on the detailed provisions. With
the promise in opposition of Tony Blair to
legislate, now realised, educational establishments should regard this as highly significant legislation.
The Bill was in the spirit of the Nolan
(1996) Committee's Second Report which
contained three germane recommendations:
1 R6. Representative bodies, with the help of
the funding councils, should produce a
common standard of good practice on the
limits of commercial confidentiality, and
should encourage all institutions to be as
open as possible subject to those limits.
All institutions should have publicly
available registers of interests.
2 R7. Institutions of higher and further
education should make it clear that the
institution permits staff to speak freely
and without being subject to disciplinary
sanctions or victimisation about academic
standards and related matters, provided
that they do so lawfully, without malice,
and in the public interest.
3 R8. Where it is absolutely necessary to
include confidentiality clauses in service
and severance contracts, they should expressly remind staff that legitimate concerns about malpractice may be raised
with the appropriate authority (the funding council, National Audit Office, Visitor, or independent review body as
applicable) if this is done in the public
interest.
Of higher education whistleblowers, the most
famous were the pioneering ``Swansea four''
of Anne Maclean, Michael Cohen, Colwyn
Williamson, and Geoff Hunt. They drew
attention to concerns about standards relating to student assessment, particularly of
dissertations, at University College, Swansea's Centre for Philosophy and Health Care.
Following judicial-type enquiry the three
remaining were reinstated, and all four were
presented with 1993 Freedom of Information
Awards on the nomination of the present
writer. Dr Bill Mallinson at the University of
Bournemouth expressed worries about the
way that commitments consequent upon
Erasmus funding were not being fulfilled,
and was eased out as course director, discriminated against, disciplined, and pressurised towards resignation. However, on 17
March 1993 the university issued a press
statement that £2,343 had been repaid to
Erasmus in full and final settlement.
The culture of fear is not unknown in other
parts of the educational system, and the
lower down one goes, the more intimidated
staff may become, since in higher education
there are higher degrees of self-determination, which are lacking at the primary stage.
A secondary school example involved Harry
Whitby (Vinten, 1994), who was unjustly
accused by a teenage pupil in a remedial
class. Coincidentally Harry was the trade
union representative, and it suited the headmaster to discipline and then dismiss him,
despite any lack of convincing evidence.
There were attempts to prove mental instability, until Professor Anthony Clare, the
eminent psychiatrist contradicted this. A
High Court judge found in Harry's favour,
but despite this the school and education
authority continued to play games, and the
trade union was less than helpful. Over a
decade on, Harry still awaits a vindication
which will probably never come.
Despite the financial crisis at the University of Luton, its first Vice-Chancellor continued as Chair of a National Health Service
Trust at remuneration of £20,000 a year,
which meant that he was working an eight
day week. He even promised to donate half of
this to a charitable cause within the University as token that half of the NHS Trust
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
duties were performed within work time,
although there is no evidence of such a
donation. Even when such a dual existence
was condemned by the Comptroller and
Auditor-General (1997) at another university,
he continued in the role, with the support of
governors, who were equally criticised for
allowing it to happen at the other institution.
The culture was such as to deter anyone who
might contemplate whistleblowing, but despite this there was a flurry of articles in
local newspapers with information supplied
by the staff. When there was a vote of no
confidence in this Vice-Chancellor, the then
Chair of the Governors dismissed it with the
words that he did not believe the staff really
meant it. Yet he considered that there was a
culture of openness, and that staff should feel
him approachable.
The University of Portsmouth case is
worth exploring in its own right (Comptroller and Auditor-General, 1997). In early 1996,
the Comptroller and Auditor-General received correspondence from individuals, including the former Deputy Vice-Chancellor of
the University, making a range of allegations
relating to the governance of the institution
and specifically the handling of irregularities
in the former Vice-Chancellor's expenses
claims and the handling of the departure of
the former Deputy Vice-Chancellor. Even
though the University has already taken
action, there are general lessons for the
sector and there was still disquiet about these
matters in 1996. The University has reviewed
the arrangements for governance and the
Board of Governors has accepted the wideranging recommendations for improvement
which emerged.
The National Audit Office found that
errors of judgement were made in the University's handling of the investigation of the
former Vice-Chancellor's expenses and that
the handling of that investigation and other
aspects of the governance of the University
did not comply with accepted good practice.
The University has been subject to considerable disruption and has incurred significant
costs. These included some £140,000 for an
independent inquiry by Mr Jeremy Lever QC
and subsequent legal costs. In addition, the
University's handling of the departure of the
former Deputy Vice-Chancellor may have
caused the severance costs to be greater than
strictly necessary.
In relation to matters of alleged or proven
impropriety, the National Audit Office Report recommends that the Higher Education
Funding Council for England and the Department for Education and Employment
consider whether there is scope for providing
clearer or more emphatic guidance to higher
education institutions on various aspects of
governance including: the role of the Audit
Committee and the Board of Governors in
relation to matters of impropriety; the principles which should inform decisions by
institutions on the handling of misconduct by
senior staff; and the procedures for handling
whistleblowers in cases of alleged financial
misconduct or maladministration as set out
by the Committee on Standards in Public Life
in their report on Local Public Spending
Bodies.
The Investigation of Misconduct at Glasgow Caledonian University (Comptroller and
Auditor-General, 1998) also involved whistleblowing. The National Audit Office and the
Scottish Higher Education Funding Council
received the allegations in February 1997.
The Council's initial investigation found
sufficient cause for the University to seek
their principal's early departure in May 1997
and in September 1997, following their own
review, the University dismissed their principal for gross misconduct. The Council
completed their work in February 1998 and
the University have implemented an action
plan to reinforce proper conduct and systems
within the University.
The National Audit Office concluded that:
This was a disturbing case but the Council
acted promptly to investigate the allegations,
and as a result they and the University have
initiated action to reinforce proper conduct
within the University. The Council's actions
and the University's decision to dismiss their
principal took into account recommendations
of the Committee of Public Accounts in this
area. In the light of this case there is clearly a
need to establish whistle blowing procedures
for the sector, and to publicise these to staff.
Across the sector as a whole, Institutions
should:
.
avoid setting terms for severance for any
staff before completing any necessary
disciplinary procedures;
.
ensure vehicles provided at public expense are correctly authorised; and
.
evaluate whether their policies governing
visits overseas ensure economy and value
for money.
The National Audit Office welcomed the
Council's undertaking to require Institutions
to review and report formally on the effectiveness of their governance, as recommended by both the Dearing and Nolan
committees in 1997.
The Public Interest Disclosure Act
1998: summary of provisions
The Public Interest Disclosure Act 1998
amends the Employment Rights Act 1996 by
introducing new rights not to suffer
[ 151 ]
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
detriment or dismissal for making a protected disclosure (``blowing the whistle''). It
applies to virtually all workers in the public
and private sectors. This makes it unique,
since comparable legislation is confined to
the public sector, and organisations in a
contractual relationship with it. The Act
came into force at the end of 1998, giving time
for employers to adjust their procedures if
they wish, and for necessary secondary
legislation (on compensation and prescribed
bodies) to be passed. The main provisions are
summarised below.
The Act inserts into the Employment
Rights Act 1996 (``the 1996 Act'') protections
for workers against detriment or dismissal
for raising concerns about matters in the
public interest. It aims to encourage problems to be resolved within the workplace,
with public disclosures to be made only in
limited circumstances.
Section 1 ± Protected disclosures
This is the key section in the Act, which
contains the essential features of the new
rights.
Disclosures qualifying for protection
New section 43B(1) of the 1996 Act specifies
the categories of information that are covered by the Act (``qualifying disclosures'').
These are:
.
criminal offences
.
failures to comply with legal obligations
.
miscarriages of justice
.
health and safety dangers
.
environmental risks
.
concealing information about any of the
foregoing.
Disclosures may be protected even if they are
about matters which took place abroad
(43B(2)). A disclosure would not, however, be
protected if it constituted a criminal offence,
for example under the Official Secrets Act
1989 (43B(3)). Disclosures that are made by a
person to whom the information was given in
the context of obtaining legal advice will also
not be protected (43B(4)).
Disclosure to particular persons
Sections 43C to 43F set out the requirements
that are attached to protection when disclosures are made in various circumstances.
Protection applies where a worker makes a
disclosure:
.
in good faith to his employer or to another
responsible person (43C);
.
in the course of obtaining legal advice
(43D) (note that there are no conditions
attached to protection where a worker
makes a disclosure to a legal adviser);
.
in certain cases, to a Government Minister (43E); and
[ 152 ]
.
to a person or body prescribed by the
Secretary of State, provided that the
worker acts in good faith and reasonably
believes the information falls within the
potentially protected categories and is
substantially true (43F).
Disclosures in other circumstances to any
other person are provided for in 43G and 43H.
Disclosures more generally
Section 43G protects workers who make
``external'' disclosures i.e. other than to the
employer, a legal adviser, a Minister or a
prescribed person. A worker will only be
protected under this general category if he
has previously disclosed the matter to the
employer or a prescribed body, or has not
done so because he reasonably believes he
would have been victimised or evidence
concealed or destroyed. He must also:
.
make the disclosure in good faith;
.
reasonably believe that the information,
and any associated allegation, are substantially true;
.
not act for personal gain; and
.
act reasonably.
In deciding whether the worker acted reasonably the tribunal will take into account all
the circumstances, including particularly:
.
the identity of the person to whom the
disclosure is made;
.
the seriousness of the matter;
.
whether the problem is continuing;
.
whether the disclosure is in breach of the
employer's duties of confidentiality to any
other person;
.
any action the employer or prescribed
person might reasonably be expected to
take as a result of a previous disclosure;
.
whether disclosure was made in accordance with any internal procedures approved by the employer.
Disclosure of exceptionally serious
matters
Section 43H protects workers who make
disclosures about exceptionally serious matters. The requirements are that the failure
disclosed should in fact be of an exceptionally
serious nature, and
.
the worker makes the disclosure in good
faith;
.
he reasonably believes that the information disclosed, and any associated allegation, are substantially true;
.
he does not act for personal gain; and
.
it was reasonable for him to make the
disclosure, taking into account all the
circumstances, particularly the identity of
the person to whom the disclosure was
made.
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
Contractual duties of confidentiality
Section 43J provides that any terms in an
agreement between the worker and his
employer are void to the extent that they
preclude or restrict the making of a protected
disclosure (so called contractual ``gagging''
clauses).
Those covered by the Act
making a protected disclosure. Dismissal on
such grounds will be automatically unfair.
Section 6 ± Redundancy
This section provides that selection for
redundancy on grounds of making a protected disclosure will be automatically unfair
dismissal.
The Act will apply to virtually all employees
in the public and private sectors, and to other
workers as set out in Section 43K. These are:
.
certain agency workers;
.
homeworkers who are helped to do their
work by others;
.
NHS practitioners, such as GPs, dentists,
pharmacists and opticians; and
.
certain categories of trainees.
Section 7 ± Exclusion of restrictions on the
right not to be unfairly dismissed
Certain limited exemptions are made by
sections 11 to 13 (see below) for workers in
police service, who usually work overseas
and on national security grounds.
Compensation for those dismissed for making a protected disclosure will be set out in
regulations to be made by the Secretary of
State. (Proposals about compensation under
the Employment Rights Act 1996 were included in para 3.7 of the recently published
Fairness at Work White Paper.)
Section 2 ± Right not to suffer detriment
Section 2 inserts into the Employment Rights
Act 1996 a new Section 47B which provides
the new right not to be subjected to detriment
for making a protected disclosure.
``Detriment'' may include any action
against a worker, for example demotion,
failure to give training or promotion, or
withholding a pay rise. Workers who are not
employees will be able to claim under this
provision if their contracts are terminated.
However, because employees can claim unfair dismissal under Part X of the Employment Rights Act 1996, the right to complain of
detriment does not apply to employees who
are dismissed, unless they are on fixed term
contracts and have waived their right to
claim unfair dismissal.
Section 3 ± Complaints to employment
tribunals
Workers who are subjected to detriment for
making a protected disclosure may submit a
complaint to an employment tribunal, in the
same way as other complaints made to
tribunals.
Section 4 ± Limits on amount of
compensation
Where a worker has had his contract terminated, compensation for detriment cannot be
higher than it would have been if the worker
had been an employee who had been dismissed for the same reason.
Section 5 ± Unfair dismissal
This section introduces the new right for
employees not to be unfairly dismissed for
This provides that the usual qualifying
period and upper age limit for complaints of
unfair dismissal do not apply to a worker
dismissed for making a protected disclosure.
Section 8 ± Compensation for unfair
dismissal
Section 9 ± Interim relief
This section enables employment tribunals
to award interim relief (i.e. order re-employment or the continuation of the contract of
employment for the purposes of pay and
other conditions and continuity of employment). Tribunals will do so where they think
the applicant is likely to establish at a full
hearing that he or she had been dismissed for
making a protected disclosure.
Section 10 ± Crown employment
This section ensures that the provisions in
the Act apply to those in Crown employment.
Sections 11-18
The remaining sections relate to exclusions,
e.g. on national security grounds (section 11),
for work outside Great Britain (section 12),
and police (section 13); and minor or consequential provisions.
The Act should avoid the traumas caused
to legitimate whistleblowers, first of all by
encouraging organisations to adopt procedures which should render whistleblowing
unnecessary, and second by providing remedies in those few cases where whistleblowing
is unavoidable. In summary, to qualify as a
protected disclosure under the Act, the
worker making it must reasonably believe
that the information tends to show that one
or more of the following has occurred, is
occurring or is likely to occur:
.
a criminal offence;
.
a failure to comply with any legal obligation (this includes any breach of a
[ 153 ]
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
.
.
.
.
statutory requirement, or a requirement
under common law or administrative
law);
a miscarriage of justice;
danger to the health or safety of any
individual;
damage to the environment;
deliberate concealment of any of the
above.
Codes of practice
There is much value in setting up codes of
practice for whistleblowing (Vinten, 1992,
1994, 1996), and this is becoming a requirement in higher education. This can work to
an organisation's advantage, as well as
protecting whistleblowers. On the other side
of the coin, there is a case for setting up a
code for the whistleblowers themselves.
There are degrees of validity, with extremes
of unacceptableness and acceptability. Thus
we have Norman Bowie's (1982, p. 143) ideal
requirements of justifiable acts of whistleblowing:
.
that the act of whistleblowing stem from
appropriate moral motives of preventing
unnecessary harm to others;
.
that the whistleblower use all available
internal procedures for rectifying the
problematic behaviour before public disclosure, although special circumstances
may preclude this;
.
that the whistleblower have ``evidence
that would persuade a reasonable person'';
.
that the whistleblower perceive serious
danger that can result from the violation;
.
that the whistleblower act in accordance
with his or her responsibilities for
``avoiding and/or exposing moral violations'';
.
that the whistleblower's action have some
reasonable chance of success.
Other writers have suggested practical points
for whistleblowers to ponder. Velasquez
(1988, p. 381) has made a composite, based
upon several other writers:
.
How comprehensive is the worker's
knowledge of the situation? Is the worker's information accurate and substantial?
.
What, exactly, are the unethical practices
involved? Why are these unethical? What
public values do these practices harm?
.
How substantial and irreversible are the
effects of these practices? Are there any
compensating public benefits that justify
the practices?
.
What is the employee's obligation to bring
such practices to an end? Can the employee do more to end the practices by
working within the organization or by
[ 154 ]
going outside? What probable effects will
either alternative have on the company's
practices? On society? On the firm? On
other organizations? On the employee?
De George (1986) has suggested three conditions which may turn whistleblowing from
being an act of disloyalty, damaging an
organization, to being morally justifiable:
1 The firm, through its product or policy,
will do serious and considerable harm to
the public, whether in the person of the
user of its product, an innocent bystander,
or the general public.
2 The matter should be reported to the
immediate superior and the moral concern made known.
3 If no action results, the employee should
exhaust internal procedures and possibilities. This usually involves taking the
matter up the managerial ladder, and, if
necessary and possible, to the board of
directors.
In James' (1994) analysis, that relies heavily
on De George (1986) the following list of
considerations is provided:
1 Make sure that the situation is one that
warrants whistleblowing.
2 Examine your motives.
3 Verify and document your information.
4 Determine the type of wrong-doing involved and to whom it should be reported.
5 State your allegations in an appropriate
way.
6 Stick to the facts.
7 Decide whether the whistleblowing
should be internal or external.
8 Decide whether the whistleblowing
should be open or anonymous.
9 Decide whether current or alumni whistleblowing is required.
10 Make sure you follow proper guidelines in
reporting the wrong-doing.
11 Consult a lawyer.
12 Anticipate retaliation.
Under point 9, some blow the whistle after
they have left their organisation (``alumni
whistleblowing'') to avoid direct recrimination, and in the knowledge that the law
relating to employee confidentiality of company practices and procedures is often impractical to enforce on ex-employees, even if
there were not a public interest defence.
Another strategy, related to minimising
the risk of sabotage is (Analoui and Kakabadse, 1992):
1 Reduce dissatisfaction at work through:
.
working conditions
.
recruitment and training policies
.
pay and reward systems
.
supervision.
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
2 Find out about problems through
.
attitudinal surveys
.
meetings and quality circles.
3 Give managers meaningful feedback.
4 Reduce temptations and opportunities to
get even:
.
reduce pilferage;
.
minimise rule breaking where rules
are vague and ambiguous; difficult to
enforce and need voluntary participation of the people involved; protecting
the interests of individuals or groups at
the expense of others; inflexible and
restrictive; conflicting with other
rules;
.
improve cooperation;
.
deal with destructive practices;
.
handle disturbances;
.
ensure correct use of facilities.
5 Achieve a consistent message between top
and other levels of management that
motivate and involve the staff.
Some of the problems of the over-ready
countenancing of whistleblowing have been
outlined by Alan Westin (1981):
.
Not all whistleblowers are correct in what
they allege to be the facts of management's
conduct, and determining the accuracy of
charges is not always easy.
.
There is the danger that incompetent or
inadequately performing employees will
whistleblow to avoid facing justified personnel sanctions.
.
Employees can choose some ways of
whistleblowing that would be unacceptably disruptive, regardless of the merits of
their protest.
.
Some whistleblowers are not protesting
against unlawful or unsafe behaviour but
against social policies by management
that the employee considers unwise.
.
The legal definitions of what constitutes a
safe product, danger to health, or improper treatment of employees are often far
from clear or certain.
.
The efficiency and flexibility of personal
administration could be threatened by the
creation of legal rights to dissent and
legalized review systems.
.
There can be risks to the desirable autonomy of the private sector in expanding
government authority too deeply into
internal business politics.
An example of the equivalent of the vexatious
litigant in organizational terms has been
referred to in the US context as the troubling
employee. These are employees who have
entered into an ``I'm entitled'' mental set
through Equal Opportunities legislation, Affirmative Action, Supreme Court decisions
and other special interest perpetuations
originally initiated for defensible, idealistic,
human reasons. Such individuals are at an
arrested development level of business maturity behaviour, and expect advancement on
the basis of their special privilege rather
than through merit. It is possible to help such
individuals to grow up and mature with
training and a suitable organisational environment. It is a logical deduction that the
potential for troubling employees to become
whistleblowers is much higher than the
average.
Apart from considering procedural and
substantive ethical codes for individual
whistleblowers, it is also vital to find reciprocation of organizations being prepared to
act positively towards ethical whistleblowers. In the USA organizations such as
the Government Accountability Project have
been attempting to protect the rights of
legitimate whistleblowers. In many cases this
may be a last port of call. One needs to have
procedures at organizational level. Corporate
codes of conduct will often be a formal
safeguard. The Chartered Association of
Certified Accountants has issued advice on
the subject of whistleblowing:
Whistleblowing involves a breach of trust by
an employee and cannot therefore be justified
on a strict interpretation of what constitutes
``proper professional conduct''. In normal
circumstances the course of action advisable
for a member, if faced with action which is
deemed to be ethically unacceptable, is to
follow a series of steps:
.
Bring the matter before the superior,
except where the superior is involved, in
which case the matter should go to the
next level up. If there is no satisfactory
outcome, go to the next managerial level
up.
.
If the superior is the chief executive, go to
a relevant authority such as the Board, the
Audit Committee or the owner(s). Unless
the superior is involved, such consultation
should be with the superior's knowledge.
.
If the matter is unsolved after (a) or (b)
above, a member may have no alternative
but to resign, putting the matter in writing
for the record.
.
The Stonefrost Committee in 1990 reported
on the workings of the Honours system,
and even suggested that whistleblowers
might be included in the Honours List
(Stonefrost, 1990). ``As to `whistleblowing',
we all regarded this as an important part
of citizenship. We had no special problems
with this issue as an element of citizenship
although if there was too much `whistleblowing' its effective value could be
drowned by the noise.''
The ACCA advice was written prior to
whistleblowing having reached ever higher
levels of public and political acceptability, and
so the reservations need no longer apply. The
[ 155 ]
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
Act will be of relevance in higher education,
but the Nolan Committee resolutions are more
relevant, and the safeguarding of the student
experience and academic and other standards
are matters which should be protected.
Public Concern at Work (1997) has produced the following checklist, which is being
adopted by an increasing number of organisations:
.
.
Whistleblowing policy checklist
Employees will often be the first to see or
suspect misconduct, which may be innocent
or which may turn out to be a fraud on your
organisation, a public danger, or some other
serious malpractice.
Making sure your employees keep their
eyes open and raise such concerns is a sound
way to demonstrate and ensure good practice. It will give a clear message that those
who empted to defraud you or who are
reckless about your reputation will not get
away with it.
This Checklist has been recommended by
the Audit Commission and the Nolan Committee.
Setting the context
.
.
.
.
.
Involve your employees, listen to their
sense of right and wrong. Explain what
fraud on the organisation is, its effect on
their jobs and on your customers. Discuss
other malpractice which may seriously
damage the organisation.
When you find serious malpractice, deal
with it openly. Remember you can't expect
your employees to practise higher standards than those you apply. If employees
don't know that you will tackle the
problem, they won't tell you about it.
Make it clear that the organisation is
committed to tackle fraud and abuse,
whether the perpetrators are inside or
outside.
Employees need to know that practices
are unacceptable (e.g. as to hospitality,
gifts). If in doubt, they should ask management if something is appropriate before ± not after ± the event.
Get staff unions to back and promote this
approach.
Be open to concerns
.
.
[ 156 ]
It is never easy to report a concern,
particularly one which may turn out to be
fraud or corruption.
Try to ensure that management is open to
such concerns before they become part of
a grievance and do not let management's
lack of action itself become a grievance.
.
Make it clear that you will support concerned employees and protect them from
reprisals. Do everything you can to respect their confidentiality.
Aside from line management, make sure
employees have another route to raise a
concern within the organisation. This
should be to the chief executive, a nonexecutive director or a senior officer. Tell
employees by posters, memos or messages
on their pay slips how they can contact
that person in confidence.
Remind them of relevant external routes if
they do not have confidence to raise the
concern internally, such as an external
auditor, a regulatory body and that they
can approach Public Concern at Work for
confidential advice.
Dealing with concerns
.
.
.
.
.
Remember there are two sides to every
story.
Respect and heed legitimate employee
concerns about their own safety or career.
Emphasise to both management and staff
that victimising employees or deterring
them from raising a concern about malpractice is a disciplinary offence.
Make it clear that abusing this process by
raising unfounded allegations maliciously
is a disciplinary matter.
Offer to report back to the concerned
employee about the outcome of the investigation and, where possible, on any
action that is proposed.
Conclusion
Between the Act and the Nolan Committee,
whistleblowers should be regarded more
positively, with employers having had highlighted that unlawful discrimination against
them will be regarded very seriously indeed.
Equally whistleblowers have their own responsibilities and obligations to pursue their
course in a way that accords with legal
dictate and the codes of practice. This way
the objective should be to encourage that type
of whistleblowing that is exclusively in the
public good. Educational institutions are well
advised to formulate a code of practice on
whistleblowing, and to engender a culture, as
a natural part of educational management,
which is open and positively encourages
valid and constructive whistleblowing.
References
Analoui, F. and Kakabadse, A. (1992), ``Unconventional practices at work: insight and analysis
through participant observation'', Journal of
Managerial Psychology, Vol. 7 No. 5.
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
Bowie, N. (1982), Business Ethics, Prentice-Hall,
Englewood Cliffs, NJ.
Comptroller and Auditor-General (1997), University of Portsmouth, National Audit Office,
London.
Comptroller and Auditor-General (1998), Scottish
Higher Education Funding Council ± Investigation of Misconduct at Glasgow Caledonian
University, National Audit Office, London
De George, R.T. (1986), Business Ethics, 2nd
edition, Macmillan Publishing Company.
James, G.G. (1994), ``Whistleblowing: its moral
justification'', in Drummond, J. and Bain, B.
(Eds), Managing Business Ethics, Butterworth
Heinemann.
Nolan (1996), Second Report of the Committee on
Standards in Public Life. Volume 1: Report,
HMSO, London, Cmnd 3270-1.
Public Concern at Work (1997), A Review of the
Activities of Public Concern at Work 1997.
Stonefrost, M.F. (1990), Encouraging Citizenship.
Report of Commission on Citizenship, HMSO,
London.
Velasquez, M.E. (1988), Business Ethics, Concepts
and Cases, 2nd edition, Prentice-Hall, Englewood Cliffs, NJ.
Vinten, G. (1992), Whistleblowing Auditors: A
Contradiction in Terms? Research Series,
Chartered Institute of Certified Accountants,
UK.
Vinten, G. (1994), ``Whistleblowing ± fact and
fiction'', in Vinten, G. (Editor and contributor), Whistleblowing ± Subversion or Corporate Citizenship?, Sage, London.
Vinten, G. (1996), ``Entry on whistleblowing'', in
Warner, M. (Ed.), International Encyclopaedia
of Business & Management, Routledge.
Westin, A.F. (1981), Whistle Blowing Loyalty and
Dissent in the Corporation, McGraw-Hill, New
York and London.
[ 157 ]
Gerald Vinten
Southampton Business School, Southampton, UK
Keywords
Codes of practice, Colleges,
Employment law, Ethics,
Whistleblowing
Abstract
New legislation to protect valid
whistleblowing in the public interest is on the statute for the first
time in the UK, and provides a
valuable guide to sound practice.
This, together with the Nolan
Committee on Standards in Public
Life, and reports of the National
Audit Office, indicate what should
be expected from educational institutions. The law only protects a
limited range of high profile issues, but there are concerns
about educational standards peculiar to the sector, not protected
by the statute, but which need to
be aired. The best protection here,
which is to the benefit of employer
and employee, is to establish
codes on whistleblowing to include concerns on educational
standards. This will avoid the
types of recriminations to which
reference is made in the case
studies of educational whistleblowers, with the traumas involved
and the high and unnecessary cost
to the public purse.
The International Journal of
Educational Management
13/3 [1999] 150±157
# MCB University Press
[ISSN 0951-354X]
[ 150 ]
The essential ethos and values of higher
education and education generally need constant reiteration, with corrective action taken where necessary. One development in
maintaining the culture was the introduction
of Richard Shepherd's private member's Bill,
the Public Interest Disclosure Bill, with the
aim of protecting whistleblowers. The Bill
aimed ``to protect individuals who make
certain disclosures of information in the
public interest; to allow such individuals to
bring action in respect of victimisation; and
for connected purposes.'' The Bill had government, and indeed all party support, with
the endorsement of the CBI, Institute of
Directors and TUC. Ian McCartney, Minister
of State at the Department of Trade and
Industry, led for the government towards
agreement on the detailed provisions. With
the promise in opposition of Tony Blair to
legislate, now realised, educational establishments should regard this as highly significant legislation.
The Bill was in the spirit of the Nolan
(1996) Committee's Second Report which
contained three germane recommendations:
1 R6. Representative bodies, with the help of
the funding councils, should produce a
common standard of good practice on the
limits of commercial confidentiality, and
should encourage all institutions to be as
open as possible subject to those limits.
All institutions should have publicly
available registers of interests.
2 R7. Institutions of higher and further
education should make it clear that the
institution permits staff to speak freely
and without being subject to disciplinary
sanctions or victimisation about academic
standards and related matters, provided
that they do so lawfully, without malice,
and in the public interest.
3 R8. Where it is absolutely necessary to
include confidentiality clauses in service
and severance contracts, they should expressly remind staff that legitimate concerns about malpractice may be raised
with the appropriate authority (the funding council, National Audit Office, Visitor, or independent review body as
applicable) if this is done in the public
interest.
Of higher education whistleblowers, the most
famous were the pioneering ``Swansea four''
of Anne Maclean, Michael Cohen, Colwyn
Williamson, and Geoff Hunt. They drew
attention to concerns about standards relating to student assessment, particularly of
dissertations, at University College, Swansea's Centre for Philosophy and Health Care.
Following judicial-type enquiry the three
remaining were reinstated, and all four were
presented with 1993 Freedom of Information
Awards on the nomination of the present
writer. Dr Bill Mallinson at the University of
Bournemouth expressed worries about the
way that commitments consequent upon
Erasmus funding were not being fulfilled,
and was eased out as course director, discriminated against, disciplined, and pressurised towards resignation. However, on 17
March 1993 the university issued a press
statement that £2,343 had been repaid to
Erasmus in full and final settlement.
The culture of fear is not unknown in other
parts of the educational system, and the
lower down one goes, the more intimidated
staff may become, since in higher education
there are higher degrees of self-determination, which are lacking at the primary stage.
A secondary school example involved Harry
Whitby (Vinten, 1994), who was unjustly
accused by a teenage pupil in a remedial
class. Coincidentally Harry was the trade
union representative, and it suited the headmaster to discipline and then dismiss him,
despite any lack of convincing evidence.
There were attempts to prove mental instability, until Professor Anthony Clare, the
eminent psychiatrist contradicted this. A
High Court judge found in Harry's favour,
but despite this the school and education
authority continued to play games, and the
trade union was less than helpful. Over a
decade on, Harry still awaits a vindication
which will probably never come.
Despite the financial crisis at the University of Luton, its first Vice-Chancellor continued as Chair of a National Health Service
Trust at remuneration of £20,000 a year,
which meant that he was working an eight
day week. He even promised to donate half of
this to a charitable cause within the University as token that half of the NHS Trust
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
duties were performed within work time,
although there is no evidence of such a
donation. Even when such a dual existence
was condemned by the Comptroller and
Auditor-General (1997) at another university,
he continued in the role, with the support of
governors, who were equally criticised for
allowing it to happen at the other institution.
The culture was such as to deter anyone who
might contemplate whistleblowing, but despite this there was a flurry of articles in
local newspapers with information supplied
by the staff. When there was a vote of no
confidence in this Vice-Chancellor, the then
Chair of the Governors dismissed it with the
words that he did not believe the staff really
meant it. Yet he considered that there was a
culture of openness, and that staff should feel
him approachable.
The University of Portsmouth case is
worth exploring in its own right (Comptroller and Auditor-General, 1997). In early 1996,
the Comptroller and Auditor-General received correspondence from individuals, including the former Deputy Vice-Chancellor of
the University, making a range of allegations
relating to the governance of the institution
and specifically the handling of irregularities
in the former Vice-Chancellor's expenses
claims and the handling of the departure of
the former Deputy Vice-Chancellor. Even
though the University has already taken
action, there are general lessons for the
sector and there was still disquiet about these
matters in 1996. The University has reviewed
the arrangements for governance and the
Board of Governors has accepted the wideranging recommendations for improvement
which emerged.
The National Audit Office found that
errors of judgement were made in the University's handling of the investigation of the
former Vice-Chancellor's expenses and that
the handling of that investigation and other
aspects of the governance of the University
did not comply with accepted good practice.
The University has been subject to considerable disruption and has incurred significant
costs. These included some £140,000 for an
independent inquiry by Mr Jeremy Lever QC
and subsequent legal costs. In addition, the
University's handling of the departure of the
former Deputy Vice-Chancellor may have
caused the severance costs to be greater than
strictly necessary.
In relation to matters of alleged or proven
impropriety, the National Audit Office Report recommends that the Higher Education
Funding Council for England and the Department for Education and Employment
consider whether there is scope for providing
clearer or more emphatic guidance to higher
education institutions on various aspects of
governance including: the role of the Audit
Committee and the Board of Governors in
relation to matters of impropriety; the principles which should inform decisions by
institutions on the handling of misconduct by
senior staff; and the procedures for handling
whistleblowers in cases of alleged financial
misconduct or maladministration as set out
by the Committee on Standards in Public Life
in their report on Local Public Spending
Bodies.
The Investigation of Misconduct at Glasgow Caledonian University (Comptroller and
Auditor-General, 1998) also involved whistleblowing. The National Audit Office and the
Scottish Higher Education Funding Council
received the allegations in February 1997.
The Council's initial investigation found
sufficient cause for the University to seek
their principal's early departure in May 1997
and in September 1997, following their own
review, the University dismissed their principal for gross misconduct. The Council
completed their work in February 1998 and
the University have implemented an action
plan to reinforce proper conduct and systems
within the University.
The National Audit Office concluded that:
This was a disturbing case but the Council
acted promptly to investigate the allegations,
and as a result they and the University have
initiated action to reinforce proper conduct
within the University. The Council's actions
and the University's decision to dismiss their
principal took into account recommendations
of the Committee of Public Accounts in this
area. In the light of this case there is clearly a
need to establish whistle blowing procedures
for the sector, and to publicise these to staff.
Across the sector as a whole, Institutions
should:
.
avoid setting terms for severance for any
staff before completing any necessary
disciplinary procedures;
.
ensure vehicles provided at public expense are correctly authorised; and
.
evaluate whether their policies governing
visits overseas ensure economy and value
for money.
The National Audit Office welcomed the
Council's undertaking to require Institutions
to review and report formally on the effectiveness of their governance, as recommended by both the Dearing and Nolan
committees in 1997.
The Public Interest Disclosure Act
1998: summary of provisions
The Public Interest Disclosure Act 1998
amends the Employment Rights Act 1996 by
introducing new rights not to suffer
[ 151 ]
Gerald Vinten
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The International Journal of
Educational Management
13/3 [1999] 150±157
detriment or dismissal for making a protected disclosure (``blowing the whistle''). It
applies to virtually all workers in the public
and private sectors. This makes it unique,
since comparable legislation is confined to
the public sector, and organisations in a
contractual relationship with it. The Act
came into force at the end of 1998, giving time
for employers to adjust their procedures if
they wish, and for necessary secondary
legislation (on compensation and prescribed
bodies) to be passed. The main provisions are
summarised below.
The Act inserts into the Employment
Rights Act 1996 (``the 1996 Act'') protections
for workers against detriment or dismissal
for raising concerns about matters in the
public interest. It aims to encourage problems to be resolved within the workplace,
with public disclosures to be made only in
limited circumstances.
Section 1 ± Protected disclosures
This is the key section in the Act, which
contains the essential features of the new
rights.
Disclosures qualifying for protection
New section 43B(1) of the 1996 Act specifies
the categories of information that are covered by the Act (``qualifying disclosures'').
These are:
.
criminal offences
.
failures to comply with legal obligations
.
miscarriages of justice
.
health and safety dangers
.
environmental risks
.
concealing information about any of the
foregoing.
Disclosures may be protected even if they are
about matters which took place abroad
(43B(2)). A disclosure would not, however, be
protected if it constituted a criminal offence,
for example under the Official Secrets Act
1989 (43B(3)). Disclosures that are made by a
person to whom the information was given in
the context of obtaining legal advice will also
not be protected (43B(4)).
Disclosure to particular persons
Sections 43C to 43F set out the requirements
that are attached to protection when disclosures are made in various circumstances.
Protection applies where a worker makes a
disclosure:
.
in good faith to his employer or to another
responsible person (43C);
.
in the course of obtaining legal advice
(43D) (note that there are no conditions
attached to protection where a worker
makes a disclosure to a legal adviser);
.
in certain cases, to a Government Minister (43E); and
[ 152 ]
.
to a person or body prescribed by the
Secretary of State, provided that the
worker acts in good faith and reasonably
believes the information falls within the
potentially protected categories and is
substantially true (43F).
Disclosures in other circumstances to any
other person are provided for in 43G and 43H.
Disclosures more generally
Section 43G protects workers who make
``external'' disclosures i.e. other than to the
employer, a legal adviser, a Minister or a
prescribed person. A worker will only be
protected under this general category if he
has previously disclosed the matter to the
employer or a prescribed body, or has not
done so because he reasonably believes he
would have been victimised or evidence
concealed or destroyed. He must also:
.
make the disclosure in good faith;
.
reasonably believe that the information,
and any associated allegation, are substantially true;
.
not act for personal gain; and
.
act reasonably.
In deciding whether the worker acted reasonably the tribunal will take into account all
the circumstances, including particularly:
.
the identity of the person to whom the
disclosure is made;
.
the seriousness of the matter;
.
whether the problem is continuing;
.
whether the disclosure is in breach of the
employer's duties of confidentiality to any
other person;
.
any action the employer or prescribed
person might reasonably be expected to
take as a result of a previous disclosure;
.
whether disclosure was made in accordance with any internal procedures approved by the employer.
Disclosure of exceptionally serious
matters
Section 43H protects workers who make
disclosures about exceptionally serious matters. The requirements are that the failure
disclosed should in fact be of an exceptionally
serious nature, and
.
the worker makes the disclosure in good
faith;
.
he reasonably believes that the information disclosed, and any associated allegation, are substantially true;
.
he does not act for personal gain; and
.
it was reasonable for him to make the
disclosure, taking into account all the
circumstances, particularly the identity of
the person to whom the disclosure was
made.
Gerald Vinten
A whistleblowing code for
educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
Contractual duties of confidentiality
Section 43J provides that any terms in an
agreement between the worker and his
employer are void to the extent that they
preclude or restrict the making of a protected
disclosure (so called contractual ``gagging''
clauses).
Those covered by the Act
making a protected disclosure. Dismissal on
such grounds will be automatically unfair.
Section 6 ± Redundancy
This section provides that selection for
redundancy on grounds of making a protected disclosure will be automatically unfair
dismissal.
The Act will apply to virtually all employees
in the public and private sectors, and to other
workers as set out in Section 43K. These are:
.
certain agency workers;
.
homeworkers who are helped to do their
work by others;
.
NHS practitioners, such as GPs, dentists,
pharmacists and opticians; and
.
certain categories of trainees.
Section 7 ± Exclusion of restrictions on the
right not to be unfairly dismissed
Certain limited exemptions are made by
sections 11 to 13 (see below) for workers in
police service, who usually work overseas
and on national security grounds.
Compensation for those dismissed for making a protected disclosure will be set out in
regulations to be made by the Secretary of
State. (Proposals about compensation under
the Employment Rights Act 1996 were included in para 3.7 of the recently published
Fairness at Work White Paper.)
Section 2 ± Right not to suffer detriment
Section 2 inserts into the Employment Rights
Act 1996 a new Section 47B which provides
the new right not to be subjected to detriment
for making a protected disclosure.
``Detriment'' may include any action
against a worker, for example demotion,
failure to give training or promotion, or
withholding a pay rise. Workers who are not
employees will be able to claim under this
provision if their contracts are terminated.
However, because employees can claim unfair dismissal under Part X of the Employment Rights Act 1996, the right to complain of
detriment does not apply to employees who
are dismissed, unless they are on fixed term
contracts and have waived their right to
claim unfair dismissal.
Section 3 ± Complaints to employment
tribunals
Workers who are subjected to detriment for
making a protected disclosure may submit a
complaint to an employment tribunal, in the
same way as other complaints made to
tribunals.
Section 4 ± Limits on amount of
compensation
Where a worker has had his contract terminated, compensation for detriment cannot be
higher than it would have been if the worker
had been an employee who had been dismissed for the same reason.
Section 5 ± Unfair dismissal
This section introduces the new right for
employees not to be unfairly dismissed for
This provides that the usual qualifying
period and upper age limit for complaints of
unfair dismissal do not apply to a worker
dismissed for making a protected disclosure.
Section 8 ± Compensation for unfair
dismissal
Section 9 ± Interim relief
This section enables employment tribunals
to award interim relief (i.e. order re-employment or the continuation of the contract of
employment for the purposes of pay and
other conditions and continuity of employment). Tribunals will do so where they think
the applicant is likely to establish at a full
hearing that he or she had been dismissed for
making a protected disclosure.
Section 10 ± Crown employment
This section ensures that the provisions in
the Act apply to those in Crown employment.
Sections 11-18
The remaining sections relate to exclusions,
e.g. on national security grounds (section 11),
for work outside Great Britain (section 12),
and police (section 13); and minor or consequential provisions.
The Act should avoid the traumas caused
to legitimate whistleblowers, first of all by
encouraging organisations to adopt procedures which should render whistleblowing
unnecessary, and second by providing remedies in those few cases where whistleblowing
is unavoidable. In summary, to qualify as a
protected disclosure under the Act, the
worker making it must reasonably believe
that the information tends to show that one
or more of the following has occurred, is
occurring or is likely to occur:
.
a criminal offence;
.
a failure to comply with any legal obligation (this includes any breach of a
[ 153 ]
Gerald Vinten
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The International Journal of
Educational Management
13/3 [1999] 150±157
.
.
.
.
statutory requirement, or a requirement
under common law or administrative
law);
a miscarriage of justice;
danger to the health or safety of any
individual;
damage to the environment;
deliberate concealment of any of the
above.
Codes of practice
There is much value in setting up codes of
practice for whistleblowing (Vinten, 1992,
1994, 1996), and this is becoming a requirement in higher education. This can work to
an organisation's advantage, as well as
protecting whistleblowers. On the other side
of the coin, there is a case for setting up a
code for the whistleblowers themselves.
There are degrees of validity, with extremes
of unacceptableness and acceptability. Thus
we have Norman Bowie's (1982, p. 143) ideal
requirements of justifiable acts of whistleblowing:
.
that the act of whistleblowing stem from
appropriate moral motives of preventing
unnecessary harm to others;
.
that the whistleblower use all available
internal procedures for rectifying the
problematic behaviour before public disclosure, although special circumstances
may preclude this;
.
that the whistleblower have ``evidence
that would persuade a reasonable person'';
.
that the whistleblower perceive serious
danger that can result from the violation;
.
that the whistleblower act in accordance
with his or her responsibilities for
``avoiding and/or exposing moral violations'';
.
that the whistleblower's action have some
reasonable chance of success.
Other writers have suggested practical points
for whistleblowers to ponder. Velasquez
(1988, p. 381) has made a composite, based
upon several other writers:
.
How comprehensive is the worker's
knowledge of the situation? Is the worker's information accurate and substantial?
.
What, exactly, are the unethical practices
involved? Why are these unethical? What
public values do these practices harm?
.
How substantial and irreversible are the
effects of these practices? Are there any
compensating public benefits that justify
the practices?
.
What is the employee's obligation to bring
such practices to an end? Can the employee do more to end the practices by
working within the organization or by
[ 154 ]
going outside? What probable effects will
either alternative have on the company's
practices? On society? On the firm? On
other organizations? On the employee?
De George (1986) has suggested three conditions which may turn whistleblowing from
being an act of disloyalty, damaging an
organization, to being morally justifiable:
1 The firm, through its product or policy,
will do serious and considerable harm to
the public, whether in the person of the
user of its product, an innocent bystander,
or the general public.
2 The matter should be reported to the
immediate superior and the moral concern made known.
3 If no action results, the employee should
exhaust internal procedures and possibilities. This usually involves taking the
matter up the managerial ladder, and, if
necessary and possible, to the board of
directors.
In James' (1994) analysis, that relies heavily
on De George (1986) the following list of
considerations is provided:
1 Make sure that the situation is one that
warrants whistleblowing.
2 Examine your motives.
3 Verify and document your information.
4 Determine the type of wrong-doing involved and to whom it should be reported.
5 State your allegations in an appropriate
way.
6 Stick to the facts.
7 Decide whether the whistleblowing
should be internal or external.
8 Decide whether the whistleblowing
should be open or anonymous.
9 Decide whether current or alumni whistleblowing is required.
10 Make sure you follow proper guidelines in
reporting the wrong-doing.
11 Consult a lawyer.
12 Anticipate retaliation.
Under point 9, some blow the whistle after
they have left their organisation (``alumni
whistleblowing'') to avoid direct recrimination, and in the knowledge that the law
relating to employee confidentiality of company practices and procedures is often impractical to enforce on ex-employees, even if
there were not a public interest defence.
Another strategy, related to minimising
the risk of sabotage is (Analoui and Kakabadse, 1992):
1 Reduce dissatisfaction at work through:
.
working conditions
.
recruitment and training policies
.
pay and reward systems
.
supervision.
Gerald Vinten
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Educational Management
13/3 [1999] 150±157
2 Find out about problems through
.
attitudinal surveys
.
meetings and quality circles.
3 Give managers meaningful feedback.
4 Reduce temptations and opportunities to
get even:
.
reduce pilferage;
.
minimise rule breaking where rules
are vague and ambiguous; difficult to
enforce and need voluntary participation of the people involved; protecting
the interests of individuals or groups at
the expense of others; inflexible and
restrictive; conflicting with other
rules;
.
improve cooperation;
.
deal with destructive practices;
.
handle disturbances;
.
ensure correct use of facilities.
5 Achieve a consistent message between top
and other levels of management that
motivate and involve the staff.
Some of the problems of the over-ready
countenancing of whistleblowing have been
outlined by Alan Westin (1981):
.
Not all whistleblowers are correct in what
they allege to be the facts of management's
conduct, and determining the accuracy of
charges is not always easy.
.
There is the danger that incompetent or
inadequately performing employees will
whistleblow to avoid facing justified personnel sanctions.
.
Employees can choose some ways of
whistleblowing that would be unacceptably disruptive, regardless of the merits of
their protest.
.
Some whistleblowers are not protesting
against unlawful or unsafe behaviour but
against social policies by management
that the employee considers unwise.
.
The legal definitions of what constitutes a
safe product, danger to health, or improper treatment of employees are often far
from clear or certain.
.
The efficiency and flexibility of personal
administration could be threatened by the
creation of legal rights to dissent and
legalized review systems.
.
There can be risks to the desirable autonomy of the private sector in expanding
government authority too deeply into
internal business politics.
An example of the equivalent of the vexatious
litigant in organizational terms has been
referred to in the US context as the troubling
employee. These are employees who have
entered into an ``I'm entitled'' mental set
through Equal Opportunities legislation, Affirmative Action, Supreme Court decisions
and other special interest perpetuations
originally initiated for defensible, idealistic,
human reasons. Such individuals are at an
arrested development level of business maturity behaviour, and expect advancement on
the basis of their special privilege rather
than through merit. It is possible to help such
individuals to grow up and mature with
training and a suitable organisational environment. It is a logical deduction that the
potential for troubling employees to become
whistleblowers is much higher than the
average.
Apart from considering procedural and
substantive ethical codes for individual
whistleblowers, it is also vital to find reciprocation of organizations being prepared to
act positively towards ethical whistleblowers. In the USA organizations such as
the Government Accountability Project have
been attempting to protect the rights of
legitimate whistleblowers. In many cases this
may be a last port of call. One needs to have
procedures at organizational level. Corporate
codes of conduct will often be a formal
safeguard. The Chartered Association of
Certified Accountants has issued advice on
the subject of whistleblowing:
Whistleblowing involves a breach of trust by
an employee and cannot therefore be justified
on a strict interpretation of what constitutes
``proper professional conduct''. In normal
circumstances the course of action advisable
for a member, if faced with action which is
deemed to be ethically unacceptable, is to
follow a series of steps:
.
Bring the matter before the superior,
except where the superior is involved, in
which case the matter should go to the
next level up. If there is no satisfactory
outcome, go to the next managerial level
up.
.
If the superior is the chief executive, go to
a relevant authority such as the Board, the
Audit Committee or the owner(s). Unless
the superior is involved, such consultation
should be with the superior's knowledge.
.
If the matter is unsolved after (a) or (b)
above, a member may have no alternative
but to resign, putting the matter in writing
for the record.
.
The Stonefrost Committee in 1990 reported
on the workings of the Honours system,
and even suggested that whistleblowers
might be included in the Honours List
(Stonefrost, 1990). ``As to `whistleblowing',
we all regarded this as an important part
of citizenship. We had no special problems
with this issue as an element of citizenship
although if there was too much `whistleblowing' its effective value could be
drowned by the noise.''
The ACCA advice was written prior to
whistleblowing having reached ever higher
levels of public and political acceptability, and
so the reservations need no longer apply. The
[ 155 ]
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educational institutions
The International Journal of
Educational Management
13/3 [1999] 150±157
Act will be of relevance in higher education,
but the Nolan Committee resolutions are more
relevant, and the safeguarding of the student
experience and academic and other standards
are matters which should be protected.
Public Concern at Work (1997) has produced the following checklist, which is being
adopted by an increasing number of organisations:
.
.
Whistleblowing policy checklist
Employees will often be the first to see or
suspect misconduct, which may be innocent
or which may turn out to be a fraud on your
organisation, a public danger, or some other
serious malpractice.
Making sure your employees keep their
eyes open and raise such concerns is a sound
way to demonstrate and ensure good practice. It will give a clear message that those
who empted to defraud you or who are
reckless about your reputation will not get
away with it.
This Checklist has been recommended by
the Audit Commission and the Nolan Committee.
Setting the context
.
.
.
.
.
Involve your employees, listen to their
sense of right and wrong. Explain what
fraud on the organisation is, its effect on
their jobs and on your customers. Discuss
other malpractice which may seriously
damage the organisation.
When you find serious malpractice, deal
with it openly. Remember you can't expect
your employees to practise higher standards than those you apply. If employees
don't know that you will tackle the
problem, they won't tell you about it.
Make it clear that the organisation is
committed to tackle fraud and abuse,
whether the perpetrators are inside or
outside.
Employees need to know that practices
are unacceptable (e.g. as to hospitality,
gifts). If in doubt, they should ask management if something is appropriate before ± not after ± the event.
Get staff unions to back and promote this
approach.
Be open to concerns
.
.
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It is never easy to report a concern,
particularly one which may turn out to be
fraud or corruption.
Try to ensure that management is open to
such concerns before they become part of
a grievance and do not let management's
lack of action itself become a grievance.
.
Make it clear that you will support concerned employees and protect them from
reprisals. Do everything you can to respect their confidentiality.
Aside from line management, make sure
employees have another route to raise a
concern within the organisation. This
should be to the chief executive, a nonexecutive director or a senior officer. Tell
employees by posters, memos or messages
on their pay slips how they can contact
that person in confidence.
Remind them of relevant external routes if
they do not have confidence to raise the
concern internally, such as an external
auditor, a regulatory body and that they
can approach Public Concern at Work for
confidential advice.
Dealing with concerns
.
.
.
.
.
Remember there are two sides to every
story.
Respect and heed legitimate employee
concerns about their own safety or career.
Emphasise to both management and staff
that victimising employees or deterring
them from raising a concern about malpractice is a disciplinary offence.
Make it clear that abusing this process by
raising unfounded allegations maliciously
is a disciplinary matter.
Offer to report back to the concerned
employee about the outcome of the investigation and, where possible, on any
action that is proposed.
Conclusion
Between the Act and the Nolan Committee,
whistleblowers should be regarded more
positively, with employers having had highlighted that unlawful discrimination against
them will be regarded very seriously indeed.
Equally whistleblowers have their own responsibilities and obligations to pursue their
course in a way that accords with legal
dictate and the codes of practice. This way
the objective should be to encourage that type
of whistleblowing that is exclusively in the
public good. Educational institutions are well
advised to formulate a code of practice on
whistleblowing, and to engender a culture, as
a natural part of educational management,
which is open and positively encourages
valid and constructive whistleblowing.
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