Protection for Whistle-Blowers.

Draft 3: [Suggested by Robg8]

 

1 - No Whistle-Blower (as identified in law) shall be allowed to suffer financial loss or other damage, from the act of whistle-blowing.

2 - A law shall establish criminal and/or civil penalties for any person, company or organisation shown to have acted in a way contrary to section 1, and for compensation to be paid to any person adversely affected by such action.

 

Draft 2b; (amended)

 

1 - No Whistle-Blower (as identified in law) shall be allowed to suffer - pain or loss, from the act of whistle-blowing. In all cases; compensation shall be in excess of any actuarial assessment and any act or attempt of bribery shall be adjudged most severe. [There will be degrees of severity of sentence.] 

2 - Commercial Entity (Including those declared Not For Profit)

(i)  In addition to Criminal Sanction, all incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a financial penalty.

3- State Bodies & Non-Commercial Entities:

In addition to Criminal Sanction all incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a negative impact marked upon the employment record of any identified guilty party up to dismissal and disbarment.

4 - Adjudication:

All regulation regarding the general implementation of this Clause shall be set by Parliament in accordance with the principles here laid down. In all cases a reward for the WB shall be considered.

 

 

Draft2:

[Could I ask you all to compare & contrast Draft2 to Draft1, as I can think of no certain way of making the changes visible.]

 

-No Whistle-Blower (as identified in law) shall be allowed to suffer - pain or loss, from the act of whistle-blowing. In all cases; compensation shall be in excess of any actuarial assessment.

-Ge:

(i) All incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a financial penalty.

Be:

(i) All incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a negative impact marked upon the employment record of any identified guilty party.

Penalties & Awards:

As all actions herein are to the greater good, whatever Panel sits in judgement of these cases shall be paid for from Public Funds and all monies accrued through the financial penalties shall be used to award Whistle Blowers or dispersed to a charitable cause of their choosing. Any excess at end of year to be remitted to the Central Fund. The levels of Penalty to be set by Parliament and annually reviewed.

 

Draft1:

N.B. Text contained within '[]' is not text of the 'draft' proposal.

[We are 'good' people, we wish right to be done, and to be seen to be done. Yet, we are 'all too human'. Protection of those who strive, against the odds, to do-right is Paramount here, however - such protection is but one element of right being done. To illustrate this point, this draft commences first to address the evening of those odds before attending to the offer of 'protection'. For reasons of simplicity, the world of work is split into: Gainful-employment and Beneficial-employment. (wealth & health) Ge & Be]

-No Whistle-Blower (as identified in law) shall be allowed to suffer - pain or loss, from the act of whistle-blowing. In all cases; compensation shall be in excess of any actuarial assessment.

-Ge:

(i) All incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a financial penalty.  (ii) It is pre-supposed that a WB shall receive a proportion of money saved.

Be:

(i) All incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a negative impact marked upon the employment record of any identified guilty party.

[I erred when I remarked earlier that little has been done...

http://www.nao.org.uk/wp-content/uploads/2015...bed-persons.pdf

Page 9.

https://freedomtospeakup.org.uk/wp-content/up...07/F2SU_web.pdf

Page 38. ]

edited on Apr 17, 2015 by Tom Austin

Gavin Russ Apr 5, 2015

Just remarking. https://www.gov.uk/whistleblowing/ooverviews 

This tends to give a relatively fair view ... But far from percect? 

Tom Austin Apr 5, 2015

We might as well print that overview here Gavin...

"1. Overview

‘Whistleblowing’ is when a worker reports suspected wrongdoing at work. Officially this is called ‘making a disclosure in the public interest’.

 

A worker can report things that aren’t right, are illegal or if anyone at work is neglecting their duties, including:

 

  • someone’s health and safety is in danger
  • damage to the environment
  • a criminal offence
  • the company isn’t obeying the law (like not having the right insurance)
  • covering up wrongdoing"

Tom Austin Apr 5, 2015

All hail! To the public, to lawyers, (perhaps, even certain politicians) and most definitely, to the 'Public Concern At Work.' charity. There has been growing concern, much pressure and a great deal of work done on this subject.

Public concern at work:The Wistleblowing charity, set up their own Commission to investigate and report upon all matters to do with the protection of whistle blowers, which can be found here...

http://www.pcaw.org.uk/files/WBC%20Report%20Final.pdf

I have not had a chance to read the report as yet, though there is a chance that it will not recommend going fully down the same path as in the USA - in any case I will endeavour to find out how things stand in America and provide links to whatever information there is.

Tom Austin Apr 5, 2015

Of course, its not only the eternal optimist that seeks to view every problem as an opportunity...

http://www.whistleblower.co.uk/?gclid=CIb1k6XH38QCFcOD2wod24MA6Q

Tom Austin Apr 6, 2015

The WBC did consider the situation as it exists in the USA.

Page 14...

"Rewards
56.     There are examples of financial rewards or incentive programmes in the US under the False Claims Act and the Dodd Frank Act. [53] They provide the claimant or informant with a percentage share of financial penalties.
57.     The American model allows for monetary awards where there has been significant financial loss to the government which is identified and redressed as a result of whistleblowing. Typically the whistleblower
receives between 15-30% of monies recovered and the remainder is returned to the government.
58.     The Home Office is considering financial incentives for those who blow the whistle on fraud, bribery and corruption, as part of its Serious and Organised Crime Strategy alongside the Ministry of Justice and
Department of Business, Innovation and Skills. [54] However, the Financial Conduct Authority stated in
their response to the Parliamentary Commission on Banking Standards that they have concerns over the
impact of incentivising whistleblowers. They are conducting further research into the issue of rewards for
whistleblowers with the Prudential Regulation Authority and plan to report on this in 2014...

[However]

...60.     The majority of respondents to our consultation (including whistleblowers) were not in favour of rewards. The reasons given were multiple and in summary were as follows:
a) inconsistent with the culture and philosophy of the UK
b) undermines the moral stance of a genuine whistleblower
c) could lead to false or delayed reporting  
d) could undermine credibility of  witnesses in future criminal or civil proceedings   
e) could result in the negative portrayal of whistleblowers   
f) would be inconsistent with current compensatory regime in the UK.    "

This in turn has led to their Recommendation 7:

The Commission does not recommend the introduction of financial rewards or incentives for whistleblowing.

It is also evident that there were/are a number bodies drawing-up reports of their own. We shall no doubt come to them in time.

Tom Austin Apr 6, 2015

To give us all something to do while we ponder the intricacies, could we perhaps vote for either of the following options that concern payments and rewards, please...

Tom Austin Apr 6, 2015

Option 1. Payments should be considered.

Tom Austin Apr 6, 2015

Option 2. We should retain the current practice, no payments.

Tom Austin Apr 6, 2015

Blimey, this won't do at all. Please ignore the 'Option' vote-posts above. I guess I'll just have to come up with a draft of the whole thing. [The point-scoring idea woks against such things.]

Tom Austin Apr 7, 2015

Talk of 'reward' is all well and good where money is concerned, but in what way can honesty be rewarded where lives are at stake, and much money, and many careers, rely less upon honesty?

"Only a sea change in opinion will produce the required improvement. I fear that it must be imposed from without because our leaders in medicine and academe lack the appetite to produce the required changes."

So reads the final sentence of Dr Peter Wilmshurst's text written in response to his winning of The HealthWatch Award 2003:

http://www.healthwatch-uk.org/awardwinners/peterwilmshurst.html

Cecilia Rossler Apr 7, 2015

Tom Austin, would you be able to formulate your idea in one sentence, roughly as it would appear in a constitution? At this stage, we are mainly focussed on the wording of clauses, so it would be helpful to have something specific to discuss. Thanks, Cecilia

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David Shepherd Apr 7, 2015

Rewards are not necessary to encourage citizens to speak up. The justice motive is very powerful. However people need to be valued by listening to their concerns and by protecting them from harmful repercussions - see the Francis report on the NHS at freedomtospeakup.org.uk. There is even a British Standard code of Practice - PAS1998:2008. All public bodies should maintain whistleblower systems that value and protect citizens who speak up about misconduct.

Tom Austin Apr 7, 2015

Thanks for that David. It's plain enough from the points stated at '60' in one of the posts above, that we do value justice and honesty in the UK. Nevertheless, I will include rewards in my first draft. For the simple reason that 'treading the straight and narrow path' should be encouraged - our valuing justice and honesty speaks to that. However, it must be true that keeping to that path is both desirable and difficult, and rather than having a system reliant solely on the threat of being caught-out, perhaps knowing that there is an inducement: An inducement for correction offered in the same 'coin' as other negative inducements to err, could help in many cases.

It is proving rather more problematical to introduce effective check and balances, along whistle blowing lines, in the health and medicine sectors; where the potential losses are great on both sides. Yet, as we live in a time when money takes precedence over life, political will at the international level may be needed to sort these particular issues out.

Rob G Apr 7, 2015

Didn't this idea stem from a discussion about people not taking people blowing the whistle seriously? I'm not sure how making payments to people will help remedy that...

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BananaPlant Apr 8, 2015

Interesting

Cecilia Rossler Apr 8, 2015

Tom Austin, thanks for updating your idea. I think it is much better now. However, if I could make a few comments on the wording:

"No Whistle-Blower (as identified in law) shall be allowed to suffer - pain or loss, in doing right. In all cases; compensation shall be in excess of any actuarial assessment."

- instead of 'in doing right' how about 'from the act of whistle-blowing' - I think that is more specific

-perhaps including a definition of a whistleblower would be useful? (I suggest something like 'employee calling attention to corporate neglect'

- what do you mean by 'actuarial assessment' here? 

 

The next bits (Ge and Be) seem more matters for legislation than a constitution, although I fully agree with them:

-Ge:

(i) All incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a financial penalty.  (ii) It is pre-supposed that a WB shall receive a proportion of money saved.

Be:

(i) All incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a negative impact marked upon the employment record of any identified guilty party.

Users tagged:

Tom Austin Apr 8, 2015

Thank you Cecilia. The above is 'Draft1' for a very good reason.

The main hurdle will be my rowing-back from the 'original' impetus that brought about this Proposal, 'protection' for & attention given to WBs. I have created this problem for myself for a good reason: There is a need for there to be an underlying 'Onus' to do right, which is something that I hope would insure WBs of a welcome and a well established willingness on the part of the 'body' complained against to attend to the matters raised ASAP. And penalties should the case be different.

-   https://www.gov.uk/whistleblowing

-Actuarial assessment: A 'mean-test' as opposed to a means-test. I wish it to be known that 'niggardliness' will not be acceptable - it shall ever be more expensive to ignore the WB than attend fully to the matters raised.

-Legislation. Legislation may vary the percentages and degrees, but the fact that there will be a cost in not attending to the matters raised ASAP etc. needs to be there for all to see.

Fiona Condon Apr 8, 2015

Personally, I'm not very in favour of monetary rewards for whistle-blowers but whether we go down that route or not, I don't think it belongs in the constitution. It might vary depending on the circumstances.

Also, should there be something to specifially exclude false, ie mailicious, whistle-blowing. I'm not sure how we deal with mistaken false claims but probably we would have to accept that if a claim is made in good faith, the whistle-blower would be treated the same as bona fide one. All this rather a lot to sum up ina sentence or two.

Tom Austin Apr 8, 2015

Thank you Fiona, you are not alone in your disliking of monetary reward, and IF Whistle-Blowers were routinely listened to, and IF the course of 'life' tended towards self-correction, all on its lonesome, there would be little need indeed for the least encouragement. Alas, it is not so, on either point.

Rewards are part of the overall mix today: think, Crime-Stoppers and Shop-a-neighbour (suspected benefit fraud).

There are provisions within the definition I link to above, and everywhere else, just about, to weed-out the 'vexatious', and protect those with 'reasonable belief'.

In addition to a company's Suggestion Box (some too come with a reward) there is the unofficial path. (under another link above).

Cecilia Rossler Apr 14, 2015

Tom Austin, I just wanted to say that I prefer draft 1 of the options above. However, I feel that it is a little lengthy for a constitution and would encourage you to shorten it if you can.

Users tagged:

Tom Austin Apr 14, 2015

Cecilia Rossler,

1 - No Whistle-Blower (as identified in law) shall be allowed to suffer - pain or loss, from the act of whistle-blowing. In all cases; compensation shall be in excess of any actuarial assessment and any act or attempt of bribery shall be adjudged most severe. [There will be degrees of severity of sentence.] 

2 - Commercial Entity (Including those declared Not For Profit)

(i)  In addition to Criminal Sanction, all incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a financial penalty.  (ii) Every WB shall be offered a reward.

3- State Bodies & Non-Commercial Entities:

In addition to Criminal Sanction all incidences of Corporate neglect in attending to matters raised by a Whistle-Blower (WB) shall incur a negative impact marked upon the employment record of any identified guilty party up to dismissal and disbarment.

4 - Adjudication:

All regulation regarding the general implementation of this Clause shall be set by Parliament in accordance with the principles here laid down.

Cecilia Rossler Apr 17, 2015

Thanks Tom for working so hard on this idea. My only worry is the clause "Every WB shall be offered a reward." as this might diminish whistleblowing in the sense that it might become about reward rather than holding corporations responsible. Really my only quibble is the word 'shall' - if this was changed to 'may' or even 'Compensation for WBs must be considered' that would be fine.

Users tagged:

Tom Austin Apr 17, 2015

I feel that 'reward' has to be included. The reasoning laid out on the archive page here from the leading 'working group' I dismiss for its sentiments are backward-looking, and we here are forward looking. I accept the points you make about 'shall' and 'may', and will amend the above accordingly.

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Cecilia Rossler Apr 17, 2015

Note to all users: Phase II ends in one day. By the end of this stage we need a clear, concise clause for the constitution.

Rob G Apr 17, 2015

There was no mention of a reward in the first phase, and I wouldn't have supported the proposal if there had been - "reward" is not "protection". I also believe that the proposed text is too wordy for a constitution. I'd therefore propose the following (bold = departure from the proposed text).

1 - No Whistle-Blower (as identified in law) shall be allowed to suffer financial loss or other damage, from the act of whistle-blowing.

2 - A law shall establish criminal and/or civil penalties for any person, company or organisation shown to have acted in a way contrary to section 1, and for compensation to be paid to any person adversely affected by such action.

Tom Austin Apr 17, 2015

Whilst I admire your take on this Rob, and thank you for your attention, is not 'compensation' part of 'Section 1'?

Could we compromise upon: "...contrary to Section 1, and award considered in all cases commensurate with sacrifice."

Please consider the LIBOR scandal, and others of that ilk. All things 'Cricket' are readily swept aside in these days of bonus-driven culture. I'm sure 'inducements' could be an additional burden upon the potential do-gooder and the threat that 'bribes' could be matched in any event must be a good thing.

Rob G Apr 17, 2015

I think it's fair to distinguish between compensating a whistle-blower where her/his right to raise concerns and not suffer ill treatment has been breached; and possibly incentivising someone to jump straight to a whistle-blowing procedure rather than raising their concerns "through the line", because there's a "reward" for doing so. Or incentivising people to raise false alarms because they want the reward, without prescribing a penalty for wrongly maligning their employers/colleagues.

I don't like "sacrifice", as that implies giving something up voluntarily, whereas what I'm hoping to see punished is someone being inappropriately mistreated.

This is also meant to be a constitution, and I don't believe it should contain detailed provisions for every eventuality. And if a regulator like the Financial Conduct Authority with all its knowledge of the sector chooses to offer a system of reward, with appropriate penalties for malicious behaviour, I'm happy for it to do so - but that's a matter of how it performs its duties, not "high principle"...

Tom Austin Apr 17, 2015

OK Rob, I'll run your suggested clause up the flag pole...

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John Robertson Apr 18, 2015

Glancing too late at this I think the constitution needs watertight guarantees of the quality of union representation and access to DIY justice for whistle-blowers. I've voted-up the top draft without careful consideration of the other drafts. I just think the top draft looks fine for a constitution. If there aren't wrongs to be put right in a constitution, I don't see the need to waste ink. Exerience in doing jobs in voluntary sector social work taught me that there is a need for whistle blowers. I ring the funder once who said "Why are you telling me this?", as though the service were not being done on taxpayers' money and he was not the person who decided what goup of XouihdE!!!!???W get the grant.

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