Whistleblowing and the Francis report

By Mike Emmott, CIPD Employee Relations Adviser, @emmott_m

It is unlikely that Robert Francis QC knew what he was letting himself in for when he agreed in 2009 to conduct an enquiry into what had gone wrong at the Mid-Staffordshire NHS Trust.   After reporting in 2010 on what went wrong, and a subsequent enquiry into why it happened which reported in 2013, we now have his report, Freedom to Speak Up (February 2015) recommending how to ensure that NHS staff feel safe to raise concerns. 

Quite rightly, Francis sees the answer to many of the problems facing whistleblowers in the NHS as getting the culture right.  The report recommends adopting a culture of safety, where staff feel comfortable to raise concerns, a culture free from bullying, a workplace where leadership is visible and staff are clearly valued, and a shift to embed the process of reflective practice.  So, in line with a succession of reports on the financial sector, this is another major report that pins the blame for serious management misdemeanours on a defective culture.  We might expect it to conclude that here is a big job for HR to tackle.   

But that is not where the report comes down. Francis accepts that in many NHS organisations responsibility for the whistleblowing policy currently rests with HR departments. However he asserts that this is partly because the legal remedy for those who suffer a detriment as a result of speaking up is through employment law, and partly because of what he calls a confusion between grievances and safety concerns. His key recommendation is for NHS trusts to appoint “guardians” who will listen to whistleblowers and ensure that concerns about patient safety are addressed. 

In other words, Francis seems to have turned his back on HR on the grounds that HR is not part of the solution but part of the problem.  In his perspective, HR has neither the independence nor the authority to protect whistleblowers. 

The reason why whistleblowing is generally dealt with by HR is that it’s about organisation culture and individual conduct: both fundamental issues for HR.  On what grounds does Francis want to place responsibility elsewhere?  He asserts that: “Both grievances and processes to manage poor performance lead organisations to default into a risk management mode, focusing on the need to erect pre-emptive defences against possible claims” (5.3.11).  He quotes an anonymous source as saying that:

“ …the most common response of too many employers towards staff who raise concerns which have not been addressed and who then seek to pursue them is to turn a patient safety/ care dispute into an employment dispute.[…]

So the fundamental charge Francis levies against HR is that the function is too preoccupied with looking after those staff who are the subject of whistleblowing allegations, at the expense of those who blow the whistle. 

My own enquiries of CIPD members suggest that HR professionals generally are well aware of the need to distinguish between issues concerning misconduct within the organisation and those relating to an individual’s employment rights.  HR professionals also agree that, where a specific concern involves both elements, they need to be separated out and managed separately. 

There may be a perception that whistleblowers are heroic figures determined to speak truth to power, no matter at what personal cost to themselves and their careers.  There is no doubt that some would match this image.  However there are also many cases of employees who are influenced by less worthy motives and may, for example, wish to pursue a personal grievance or get their own back on others in the organisation in return for real or imagined slights.  HR professionals are used to dealing with both types of case. 

Many HR professionals believe that it their bottom-line job is to protect the organisation from employment law claims.  If in some cases HR’s instinct is to “close ranks” and seek to protect the organisation from the damaging short-term impact of allegations of wrongdoing – rather than look to the negative long-term impact of seeking to bury bad news -  this should not come as a big surprise.  But it’s clear that the HR role needs to be bigger than that. 

There is ample evidence to support the report’s conclusion that psychological damage is a foreseeable risk of not treating staff correctly when concerns are raised.  If patient safety is to be protected, staff safety must receive at least equal attention and it’s clear that this is HR’s job.  Similarly CIPD research shows that looking after lines of communication with whistleblowers is critical to maintaining their confidence and giving them effective support – again, a job for HR.  It will be surprising if the NHS response to the Francis review does not reflect these basic facts of organisational life. 

CIPD is currently reviewing the future role of HR and it seems clear that this must involve moving away from a defensive, process-driven role towards a more proactive and flexible one that will deliver better outcomes for both employees and the organisation.  Meanwhile many HR professionals, both in the NHS and elsewhere, are actively working to build trust-based cultures where employees feel safe to raise issues without putting their career on the line.   

The recommendation of “guardian” roles in individual trusts, and an Independent National Officer who would review the handling of concerns raised by NHS staff and advise NHS employers on appropriate action, may help to highlight further failings by NHS employers in future.  But it’s unlikely to change staff perceptions that blowing the whistle will prejudice their future in the organisation.  The only way to do that is for the senior management team in each trust to make absolutely clear that they are personally determined to implement their organisation’s whistleblowing policy to the full, and will do their level best to see that whistleblowers are looked after. 

There is no failsafe method of protecting whistleblowers from colleagues who believe they are undermining their own interests or those of the wider organisation.  But if staff believe that management is committed to addressing serious concerns, and is on their side, they are more likely to be willing to come forward and raise concerns.  The single best way of protecting whistleblowers is to encourage them to raise concerns internally, and in such a way that they can be handled on a confidential, need-to-know, basis.  Almost by definition, most of those NHS whistleblowers whose careers have been damaged will have been people whose concerns have become public knowledge. 

 

 

 

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  • Anonymous
    Anonymous

    Your argument is based upon an employee relations perspective. The Francis enquiry is focused on the safety and security of the healthcare industry-these need to be distinct and are currently muddled together.  As the lead psychologist from the BRitish Psychological Society contributing to this Francis review, I must disagree with your assertion that raising a concern internally is the safest approach.  This is not what the research evidence suggests for either the individual or the system they are commenting upon.  HR systems are implicated in the avoidance of inquiry and the imposition of a quasi judicial process-which is not impartial as the 'judge' has a vested interest-social psychology 101. In aviation where I have worked before, safety concerns are not processed through HR and can be raised anonymously.  I think this report is a timely call to HR to address its use of dangerous and damaging disciplinary and grievance procedures that hurt people and avoid addressing real concerns.


  • I am disappointed that there is not more focus on the positive contribution of unions such as the RCN who themselves champion the highest standards of patient care. The Francis recommendations run the risk of undermining good local partnership working by sidelining union reps. I would like to see much more effort given to joint local work on improving organisational culture and would welcome input from the RCN, BMA et al on how best to achieve this. I also think there needs to be much better clarity around what is a protected disclosure and what is an employment dispute. The reasonableness of the expected redress following a PD can be unrealistic.


  • I am disappointed that there is not more focus on the positive contribution of unions such as the RCN who themselves champion the highest standards of patient care. The Francis recommendations run the risk of undermining good local partnership working by sidelining union reps. I would like to see much more effort given to joint local work on improving organisational culture and would welcome input from the RCN, BMA et al on how best to achieve this. I also think there needs to be much better clarity around what is a protected disclosure and what is an employment dispute. The reasonableness of the expected redress following a PD can be unrealistic.

  • Anonymous
    Anonymous

    "The single best way of protecting whistleblowers is to encourage them to raise concerns internally, and in such a way that they can be handled on a confidential, need-to-know, basis."

    The assumption here is that organisations - HR included - are equipped to do this. The evidence, whether you look at Public Concern At Work's research or talk to organisations like @GlobalLeaks (which I did last week), is that it is over simplistic to say that whistleblowers are best off doing so internally. Context is everything, and I suspect more often than not the difference that makes a difference is the individual human beings in key roles and the trust employees have in them. I spoke to a NHS nursing director this week, who interestingly works v closely with her HR colleagues, and what emerged in conversation was the extent to which it was the honesty she embodied, her own willingness to share stories of how she challenged unethical behaviour, that seemed to be key. That takes courage and humility in spades, and, with notable exceptions, what I think HR departments sadly lack.

    What if, just for now, HR were to accept that in some instances it is indeed part of the problem, that it may need to step aside? Or alternatively, were to step up, with courage? My colleague Alex Swarbrick laid that challenge down to HR in his post last week, pithily titled 'Has anyone seen HR?' (www.roffeypark.com/.../anyone-seen-hr) . Too often, they aren't there. Alex's closing comment in that post is worth quoting here:

    "HR too are frazzled. But as a profession, not just in the NHS, we’ve made a choice about where we stand, and what our role is. And now there’s another choice to be made. Remain irrelevant or start to challenge. But be clear, after today, if HR doesn’t, others will."

  • Anonymous
    Anonymous

    I am afraid I have to disagree with a number of your notings. I agree Sir Robert does not seem to have grips of the scale and/or depth of problems when he agreed to undertake these reviews, however, the fact that he has at least acknowledged that the problem exits is the first step. I also agree that many (rather almost all) the solutions advised are not far reaching enough (at least in the short term) to find a solution. However, I donot agree that HR are best placed or even placed anywhere near the slab where they can be said to be in a position to deal with the complexity of such claims or disputes. The HR in most organizations are engrossed in dealing with employment side of things, and tend to take entrenched and "defensive" positions, very early in the dispute. many a times, the whistleblowing is against the HR practices, so asking them to investigate would be a conflict of interest. For HR to later come out of their entrenched position, and "let go" or "accept that they were wrong" is more a theoretical concept than is what is commonly seen in practice in these organizations. Also, HR have the responsibility to liase with the solicitors to "defend" the trust in most such organizations, so entrusting them with the responsibility of "dealing with whistleblowing" again becomes unsustainable. In a theoretical ideal world, yes your suggestions could be relevant, but we are neither in an ideal world, nor would be, and in any case, in such a world, whistleblowing would not be needed.

    Having said that, I do not believe that the post of a "whistleblowing guardian" would solve the issue, as such a guardian would not have any "teeth", i.e. powers to issue remedial actions, and the advisory notes of such a guardian, without authoritative position, may not get accepted or implemented. Further, in most cases, such a guardian would be someone local, and it might become difficult for them to be not influenced by the culture surrounding them.

    This is the reason I have suggested the SOSH to form a "NHS Whistleblowing Authority" floating above the NHS Organizations, to keep the investigation and remedial process of whisteblowing objective and transparent.

  • Anonymous
    Anonymous

    I think for all the reasons already stated HR are not the right area to deal with Whistleblower complaints, as HR have a natural tendency to react defensively to any complaints about an area or the organisation. I have seen the establishment of "Guardians" within the Public Sector, but am unsure of how effective they have been. Whoever is responsible for dealing with such complaints internally, it would be difficult to be absolutely certain that all complaints were dealt with fairly, particularly if corporate reputational damage or criticism of senior management's integrity/involvement were a possible outcome. For all the assurances made, a Whistleblower knows currently that when they raise their issues, however legitimate, they will be unlikely to be able to continue their career or employment with that employer. So an external approach may be the only way to achieve complete fairness in the process, in the Public Sector, this could achieve traction.

  • Anonymous
    Anonymous

    I think for all the reasons already stated HR are not the right area to deal with Whistleblower complaints, as HR have a natural tendency to react defensively to any complaints about an area or the organisation. I have seen the establishment of "Guardians" within the Public Sector, but am unsure of how effective they have been. Whoever is responsible for dealing with such complaints internally, it would be difficult to be absolutely certain that all complaints were dealt with fairly, particularly if corporate reputational damage or criticism of senior management's integrity/involvement were a possible outcome. For all the assurances made, a Whistleblower knows currently that when they raise their issues, however legitimate, they will be unlikely to be able to continue their career or employment with that employer. So an external approach may be the only way to achieve complete fairness in the process, in the Public Sector, this could achieve traction.

  • Anonymous
    Anonymous

    I think for all the reasons already stated HR are not the right area to deal with Whistleblower complaints, as HR have a natural tendency to react defensively to any complaints about an area or the organisation. I have seen the establishment of "Guardians" within the Public Sector, but am unsure of how effective they have been. Whoever is responsible for dealing with such complaints internally, it would be difficult to be absolutely certain that all complaints were dealt with fairly, particularly if corporate reputational damage or criticism of senior management's integrity/involvement were a possible outcome. For all the assurances made, a Whistleblower knows currently that when they raise their issues, however legitimate, they will be unlikely to be able to continue their career or employment with that employer. So an external approach may be the only way to achieve complete fairness in the process, in the Public Sector, this could achieve traction.