Whistleblowers' refuge

13th June 2003 at 01:00
The law can protect those who go public with genuine concerns. Anat Arkin reports

An examiner who complained publicly about the grading of last year's AS-levels is considering legal action against the OCR exam board for refusing to renew her contract.

Annis Garfield, an examiner since 1976, claims that after repeatedly dodging her questions about why she had not been reappointed this year, OCR eventually told her that it was because she had "gone to the media" (TES, May 30). The board denies making this statement.

Mrs Garfield is taking legal advice on what to do next. If she has been victimised for speaking out, she may have a case under the Public Interest Disclosure Act. This legislation makes it unlawful to sack or victimise people who blow the whistle on wrongdoing at work, and covers contractors, trainees and agency staff, as well as employees.

It does not matter if the whistleblower turns out to have been mistaken, so long as he or she genuinely believed that a criminal offence, health and safety breach or other malpractice had occurred or was likely to occur.

Disclosures of attempts to cover up wrongdoing are also protected.

Whistleblowers have the best chance of winning unfair dismissal claims under the Act if they have reported their concerns to someone within the organisation. When they have gone public, it is up to them to show that this was a reasonable thing to do in the circumstances. Despite having to jump these hurdles, people who have suffered for blowing the whistle are collecting more than pound;10 million a year in compensation, according to a recent report by the charity Public Concern at Work. The highest award since the law came into force in 1999 was pound;805,000, while the average payout is just over pound;100,000.

Of the 100 or so tribunal claims analysed in the report only one was brought by a teacher - and that was unsuccessful. But that does not necessarily mean that there is less malpractice in schools than anywhere else or that staff always get a fair hearing when they expose it.

Public Concern at Work runs a helpline which receives at least two calls a month from school employees, many of them concerned about dodgy accounting practices. But they do not always want to take things further.

According to Guy Dehn, the charity's director, whistleblowing can be a heart-wrenching experience for teachers, especially when they are worried about damaging their school's reputation. In addition, staff in community schools may not know whether to report their concerns to the local authority, which is technically their employer, or to their governors.

A survey of 200 schools by Middlesex University business school published earlier this year found that only 19 per cent had confidential reporting procedures. The researchers, who are now studying the relationship between whistleblowing and child protection legislation, argue that while schools have grievance procedures and strategies for problems such as bullying, other concerns often fall through the gaps. For example, a teacher who believes a colleague has been harassed will not be able to use the school's grievance procedure.

But the survey highlights a widespread feeling that schools do not need yet another formal procedure. David Lewis, professor of employment law at Middlesex University, calls this complacency. But Bob Carstairs, assistant general secretary of the Secondary Heads Association, was probably speaking for many headteachers when he said: "The governors are in charge of the ethics and morality of the school, and if a senior member of staff is seen not to be behaving properly, I don't see that teachers are hesitant about complaining."

Public Concern at Work: 020 7404 6609

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