Whistle-blowing law warning
Solicitors working for further education colleges have warned of a legal minefield in planned laws to protect people who blow the whistle on fraud, crime and malpractice at work.
College employers' leaders also insist that the Government's plans for legal protection at work are both "unworkable and unnecessary" and insist that properly formulated codes of practice are better.
Ministers confirmed this week that Tory MP Richard Shepherd will get Labour's backing for his Private Members' Bill on whistle-blowing. Ian McCartney, corporate affairs minister, said he expects cross-party support to ensure that the measures become law.
The charity, Public Concern at Work, which has campaigned for several years for such a Bill, welcomed the announcement. It will also be welcomed by the unions which have seen a stream of whistle-blowing cases involving governors or lecturers drawing public attention to gross mismanagement, most notably the case of Derby College, Wilmorton, three years ago.
Dan Taubman, NATFHE's assistant secretary for FE, said that his union wanted an end to gagging clauses in contracts of employment. In further education, he said, it was not so much an issue of academic freedom as one of preventing management bullying.
Increasingly, people were being scared off and this could be one of the reasons why fewer people are now blowing the whistle on malpractice in colleges, he said.
But Roger Ward, chief executive of the Association of Colleges, said a Bill was unnecessary in the wake of the Nolan reports on standards in public life. An AOC draft code on whistle-blowing was out for consultation and due for publication in the autumn.
"Virtually all the public sector: the universities, health services and local authorities are looking at this issue. Nobody has a problem with the principle. It is a question of translating the principle into day-to-day practice for the work force and that requires care and thought. I doubt a Bill would lay down anything other than principle."
John Hall, head of education law at Eversheds, the leading firm advising FE, said legislation could give extra weight to good codes of conduct. "The idea of giving some form of statutory protection for a bona fide whistle-blower is going to be helpful in promoting the culture of openness."
But Bill or no Bill, "at the end of the day it's going to be down to each individual college, university and institution to decide what type of procedure is best for that organisation. Basically it is to encourage a culture rather than create another bureaucratic set of rules."
He also warned of a possible legal minefield. "It is important that the definition of malpractice should be tightly drawn. There will be a danger of members of staff raising mere mismanagement issues, when the real concerns were serious malpractice such as financial irregularity, fraud, breach of the criminal law, miscarriages of justice and the abuse and misuse of authority. "
Safeguards should work both ways, protecting not only the bona fide whistle-blower, but also other members of staff against untrue claims, he said.
"There could be practical difficulties with some investigations of alleged irregularity if promises of confidentially become inflexible and sacrosanct, " he warned.
Peter Rose, press secretary of the Nolan Committee, said the committee has not yet taken a formal position on the Bill. However it supported the general principles of an individual being able to raise problems confidentially outside the normal management chain without fear of retribution.