UK silences whistleblowers

In late 2019 a doctor tried to alert Chinese authorities to a dangerous new virus, with the potential to become a deadly pandemic. He was accused of spreading false rumours, interrogated by police, and forced to sign a statement that he had disrupted social order.

If a similar life-threatening risk had emerged in the UK, the course of events would surely have been different. The NHS publishes official advice encouraging staff who witness wrongdoing and potential harm to come forward, backed by an Act of Parliament which protects whistleblowers from suffering detriment. Correct?

Wrong. In the past few months I have spent some time looking into this scandal, and in July I sat in on a hearing held under the relevant legislation, the Public Interest Disclosure Act 1998. What occurs in most British cases is sharply different from the promise of legislation, and similar to Dr Li Wenliang’s experience.

Whistleblowers are often challenging powerful vested interests, who can afford to hire the biggest law firms, and cynical barristers who know the system. These law firms often don’t rebut the evidence — instead they seek to denigrate the integrity of the whistleblower, whether there is evidence to support their accusations or not. What one witnesses is the patient exploitation of the asymmetry of resources available when a lone whistleblower dares to hold a big company or public sector body to account. You as the whistleblower have to devote your work days, evenings and weekends to studying employment law and filling in Tribunal forms, while full-time staff at the organization’s law firm are most likely devising hostile strategies that focus more on you as an individual, than the alleged wrongdoing.

I have investigated a couple of cases to study these behavioural patterns, and independent research confirms that they are typical cases, not outliers. The strategy adopted in many cases is to shift the narrative away from the alleged wrongdoing towards the character and motivations of the whistleblower — identical to the mindset of the Chinese authorities towards Dr Wenliang (who was posthumously exonerated after dying from Covid-19). I could write a book detailing all of the intimidatory tactics commonly used by defending UK employers (and indeed, I plan to), but here are a few:

· Making baseless counter-accusations against the whistleblower,

· Threatening to impose legal costs,

· Threatening the careers of erstwhile colleagues who may have supported the whistleblower’s testimony in court (witness intimidation, in other words).

That these tactics are common, not a rare exception, is now confirmed by testimony heard by the Whistleblowers UK pressure group, by the All-Party Parliamentary Group on Whistleblowing, and a multi-agency report published in July. This report cites a quantitative study by the University of Greenwich, which found that whistleblowers are successful in only 12% of completed cases, and that the proportion falls much further taking into account cases where a whistleblower, quite understandably, gives up. So vested interests are successful in silencing critics in almost 100% of cases. In all probability, there was at least some wrongdoing in the vast majority of these cases — but we the public never get to hear about them. Government departments and the official UK media love to denounce conspiracy theories, but they never confront this industrial-scale covering up of real scandals, a state of systemic misinformation in which conspiracy theories flourish.

Georgina Halford-Hall, CEO of Whistleblowers UK, says: ‘We have seen a constant stream of criminal behaviour, seemingly avoid scrutiny. In 2018 over 30% of cases included a crime: fraud, price fixing, health and safety [lapses] and child sexual abuse … there is no evidence that these cases have been reported to the Crown Prosecution Service.

‘For those who do speak up, their future can be bleak. They face many obstacles and repeated detriment, not least navigating overly complicated legislation … [and the] prospect of never working again in their chosen profession. Further hidden costs include [damaged] health and wellbeing of whistleblowers and their families.’

Peter Duffy, a consultant surgeon who brought a whistleblowing case over clinical standards at Morecambe Bay NHS Trust, was ultimately vindicated but describes quite harrowing detriment, not least from the repeated threat of legal costs being placed upon his household. He was effectively forced into exile, separated from his wife and family and unable to work in the NHS, despite being ultimately exonerated of the baseless charges against him. In his book on the scandal, Whistle in the Wind, he writes:

’The current process focuses far too much on the character of the whistleblower rather than on the original disclosures or attempts to protect the public. It is the ubiquitous response for the defending organization to produce a vehement, indignant blanket denial of everything …. [if this fails] it then blames the victimization, abuse and/or dismissal of the whistleblower on some aspect of the whistleblower’s employment history unconnected with the disclosures.’

This hunting for the tiniest discrepancy in the whistleblower’s employment record is known as ‘reason shopping’ by HR managers in the NHS, he says.

Of course, not all people calling themselves whistleblowers will be honest or well motivated. Absolutely — but all the more reason that the Tribunal system ought to switch to an evidence-based process, with judges outlawing the intimidatory tactics summarized above. Honest employers falsely accused would have nothing to fear from such a reform, and would probably be able to clear their names more swiftly, because less Tribunal time would be taken up with vexatious counter-accusations by employers engaged in a cover-up.

The July hearing that I witnessed was shocking, quite brutal. For the first time in 32 years as a journalist and author, I stepped aside from being a disinterested observer to become a protagonist in the story I was following. I made a formal complaint about the judge handling the case. I shall write up what occurred in a forthcoming blog.

You could argue that the Chinese system, nonetheless is more harsh. Neither Peter Duffy nor any other British whistleblower have been questioned by the police or forced to sign false confessions. Perhaps, but the British system is peculiarly dishonest and Kafkaesque. Those administering it pretend that the law is on your side, will be implemented fairly, that you will not suffer detriment. Some even encourage you to report. They do not warn you that, should you dare to report a powerful vested interest for wrongdoing, you will likely be defamed in open court, your physical and psychological health harmed, your personal finances imperilled and your family’s welfare threatened. This occurs routinely, irrespective of the strength of the case. And it happens to some of society’s most principled citizens. That is cruel.

· For information on the ongoing British whistleblowing scandal, go to Whistleblowers UK on this link: https://www.wbuk.org/