Whistleblowing and Covid-19: implications and key considerations for GP practices

First published in Association of Independent Specialist Medical Accountants (AISMA) Doctor Newsline in Winter 2021 issue

Covid-19 has brought safety concerns and whistleblowing protections into sharp relief. Martin Cheyne explores some implications for practices to watch out for

What is whistleblowing?

This is the raising, by a worker, of some concern about a danger, a risk or wrongdoing or the potential for any of these. If a worker raises this, then if they are to be protected by the whistleblowing regime, their concern must:

  1. contain sufficient information;
  2. be made to the appropriate person or organisation;
  3. be made in the public interest; and
  4. be a concern about which the worker reasonably believes is wrong

These can be very technical requirements, but the starting point for practices should be to treat the whistleblowing protections as very broad and relatively easy to apply. It is generally in the public interest for whistleblowing protections to be afforded to workers and so the technical requirements are often not substantial hurdles to overcome.

What are the protections afforded to workers who blow the whistle?

If a worker suffers a detriment of any type or is dismissed because of their having raised protected concern, then they can:

  • apply to an Employment Tribunal to have their employment immediately reinstated whilst they bring their claim;
  • seek reinstatement or re-engagement of their employment (and all related back pay) at conclusion;
  • compensation for any dismissal;
  • compensation for any other detriment to their employment

In all cases, the compensation that could be payable is uncapped. This can be substantial, particularly if the worker is unlikely or unable to find similarly remunerated alternative employment. Some of the largest awards made have involved employees who have had to retire after they raised their concern, having failed to rapidly find new similar work.

As part of ensuring that workers are protected, there is no minimum period of service before workers are protected. Even a new employee, still in their probation period, would be afforded the protection of the whistleblowing legislation. In the NHS, following the Francis review, this protection is extended further to the recruitment process. This applies to most NHS public bodies, although not necessarily directly to GP practices themselves.

How do we know if it is a whistleblowing concern?

A whistleblowing concern does not need to expressly say “this is a protected concern and I am blowing the whistle”. It could be raised with the employer openly as a whistleblowing concern, but it may wrongly state or suggest that it is merely a grievance. If the concern being raised relates to a wider public interest or has potentially wider implications or has the possibility of impacting other workers, then it may well be a whistleblowing concern.

Often the nature of the concern can be clarified with the individual raising it, though if there is doubt whether to treat it as a whistleblowing concern, practices should seek professional advice.

To whom should the concern be raised?

The majority of whistleblowing concerns are raised with the employer and the employing practice would usually be the recommended, best and first place for a worker to raise their concern. However, raising something with the employer is not a mandatory requirement of the whistleblowing regime and concerns can be raised with legal advisers, regulators or another relevant body.

It is not uncommon, for instance, for the HSE, NHS England or CQC to be the initial recipient of a concern. Those bodies will then usually make contact with the practice to seek an initial view and they will likely expect a full investigation to be undertaken and outcome report provided to them.

What types of concern are covered?

The whistleblowing regime covers a wide range and overlapping variety of subjects. They are (this includes their concealment):

  • Criminal offences;
  • Breach of any legal obligation;
  • Miscarriages of justice;
  • Danger to health and safety of any individual;
  • Damage to the environment

What Covid examples are there?

Covid and issues relating to Covid are very likely to cover at least two or three of the whistleblowing subjects. We are already seeing media coverage of concerns where the whistleblowing regulations could apply. Some examples:

  • Failures to follow government guidance;
  • Inadequacy of government guidance;
  • Rapid developments or contradictions in government guidance;
  • Workplaces failing to be properly risk assessed as Covid secure;
  • Concerns about travelling to work in shared or on public transport;
  • Inadequate workplace ventilation;
  • Inadequate washing facilities;
  • Inadequate distancing between workers;
  • Co-workers failing to undertake mandatory self-isolation;
  • Exposure to patients who are or are likely to be Covid positive;
  • Inadequate measures to protect clinically vulnerable staff;
  • Inadequate, insufficient or failing Personal Protective Equipment;
  • Patient failure to comply with good Covid secure practice;
  • Patient behaviour and complaints

One of the most widely reported Covid interventions was by the Health and Safety Executive in September 2020, where the HSE found multiple failings by management at the Department for Work and Pensions. They found:

  • A line manager giving instruction to a group of staff, without maintaining social distancing;
  • Designated two-way walkways, despite being only one metre wide;
  • Designated walkways passing too close to desks designated as useable;
  • Stairwells inappropriately designated as two-way, when even passing places failed to provide 2 metre distances;
  • Small tables, breakout pods and benches without “do not use” signage.

The HSE undertook their inspection having received a report of a “workplace concern”. It is likely that a worker reported their concerns to the HSE – that worker would almost certainly be protected by the whistleblowing legislation.

So what should the practice do?

Practices will likely have in place an existing whistleblowing policy. That should always be the start point for consultation and be a reference material. Other policies (such as the grievance policy) may also be relevant.

Practices should have a trained, designated officer responsible for ensuring that an appropriate investigation is undertaken. This could be the Practice Manager, a Partner or HR professional. If a whistleblowing concern is received, they should carefully consider what has been raised and whether they have sufficient information.

It is vital to ensure that the worker is not, at that early stage, punished in some way. This can easily be inadvertent: taking action to protect an employee can easily be construed by the worker as “punishment”. Practices should take care to avoid simply sending an employee home, thinking that would be in the employee’s interests. Explore with the employee what they may want and need: if a whistleblower is to be open about their concerns, they may want or need their identity kept confidential.

Communication is always key and where an employee or worker is already raising a concern with a practice, it is vital to engage with them rapidly and, where possible, look to immediately ameliorate things or provide the worker with assistance.

An investigation into the concerns will always be needed. Usually, more information will be required and so exploring this with the employee will often be an early step. Dealing with this in the Covid pandemic though may mean that inquiries are made using remote systems rather than face to face.

A particular issue that practices will face in winter 2020/21, will be their simple capacity to deal with an investigation. Covid, influenza, staff absence and even vaccination programmes will all likely impact on a practice’s capacity to progress. If this is going to mean that an investigation cannot swiftly be undertaken in the normal way, then practices should be open about the likely delays. They can also consider getting external support and seeking the forbearance and agreement of those involved.

After the issue is investigated, there needs to be a form of reporting back to the individual (and possibly a regulator or other body). At the very least, this ensures that it is appreciated that the concern is taken seriously, but it also allows any remediation to be transparent and clearly understood.

Finally, practices may need to have regard to data protection principles in what feedback can be provided, particularly if the concerns raised involve the actions of individuals or other staff. For instance, it is unlikely to be appropriate to describe the extent of disciplinary action that is to be applied to co-workers.