John Hall looks at the proposed legislation on public disclosure and says it will give managers vital protection from disgruntled staff
Colleges fear that the new Government-backed "whistle-blowers' Bill" will open the door to unwarranted and malicious attacks from disgruntled staff.
But all the evidence suggests it will give managers the vital protection needed to fend-off such accusations.
The background to the Public Interest Disclosure Bill should already be familiar to colleges. The second report of the Nolan Committee into standards in public life recommended that all local public spending bodies should adopt appropriate codes of practice. These would allow concerns to be raised confidentially inside and, if necessary, outside the the college.
The Government also agreed that this was an important issue. But when a Public Interest Disclosure (Private Member's) Bill was introduced three years ago, it failed to reach the statute book, running out of parliamentary time.
Perhaps not surprisingly, there has been reluctance among colleges and universities to implement the Nolan recommendations. General guidelines were issued by representative bodies but development of the necessary arrangements was deliberately left to institutions. After all, each must decide what will be appropriate to its culture, size and other circumstances.
There has also been an anxiety that "whistle-blowing" might open a Pandora's box of malicious, speculative and politically driven claims. A dearth of "model" procedures has further hampered implementation of Nolan. Thus, when the committee came to review standards of conduct in its fourth report, it concluded (perhaps a little unfairly) that there was still some "complacency" among institutions within the sector.
The committee once again urged bodies to make sure whistleblowing procedures were in place to allow staff appropriate external avenues in which to raise concerns about malpractice.
According to the committee"Ithose organisations which do not have arrangements to give staff the opportunity to act responsibly to uphold the reputation of the organisation and maintain public confidence will be looked upon as failing in their duty adequately to protect the public purse".
Although the recommendations of the Nolan Committee are not legally binding, there is clearly an expectation that institutions will implement them and, in the case of colleges, this is likely to be an area which is picked up by Further Education Funding Council inspectors.
Following close on the heels of the fourth report and Sir Ron Dearing's inquiry into higher education, which endorsed Nolan, came a revised version of the Public Interest Disclosure Bill. It was introduced by Richard Shepherd MP and sponsored by the lobbying group Public Concern at Work, as an amendment to the Employment Rights Act 1996.
It sees new rights for workers to seek redress through industrial tribunals if they are dismissed or disciplined for making a disclosure where they have reasonable grounds to believe there is malpractice. This would cover corporate misconduct such as law-breaking, miscarriage of justice and breaches of health and safety or environmental protection regulations, and also attempts to conceal such misconduct.
Agreement has yet to be reached between the Government and Mr Shepherd on levels of compensation which should be available in cases of dismissal. The Government favours mirroring awards made in cases of the dismissal of health and safety representatives. The promoter favours unlimited compensation, depending on the loss suffered and the complaint made. In either case, awards against victimised workers could be very substantial.
The Bill is now certain to become law as the Government has announced its support for it. Commenting recently on the Bill, Ian McCartney, the trade and industry minister, said: "The proposals give essential legal protection for responsible workers who expose wrongdoings. They set out a scheme for disclosures which we also believe will lead to better, more widespread arrangements for raising and resolving issues of concern.
"Under the provisions, workers will be encouraged to sort things out first and foremost with their employer, but they will be protected from dismissal and detriment if in the last resort they have to take their concerns to an outside body."
The reaction of some colleges and universities to the new Bill has been one of wearisome resignation. Many institutions feel that the introduction of yet another set of procedures will merely serve to tie them up in even more complex bureaucratic knots than at present and encourage unmeritorious whistle-blowing.
An alternative view is that the adoption of sensible procedures should provide valuable protections which institutions do not at present enjoy. Without such procedures institutions will be much more vulnerable to complaints of victimisation of whistle-blowers and will be less able to take any action against individuals who make external disclosures(for example, to the media) without having reasonable grounds for doing so.
Sensible procedures should also boost public confidence in educational bodies and have positive effects in promoting a culture of openness and a shared sense of responsibility among managers and staff for identifying and dealing with impropriety.
A number of "model" public interest disclosure procedures are being developed for use in further and higher education. These will need to be adapted to suit the particular needs and to ensure that it is compatible with its other internal procedures. It is suggested that in drafting any such procedure a minimum number of points must be addressed (see above).
Sensible procedures, which are practical and problem-solving, should provide considerable benefits. This will be even more so where they are designed to safeguard public monies and boost public confidence. Colleges and universities should start the ball rolling now.
John Hall is head of Eversheds' education law department
* Model charter basics
Title: It is important to emphasise the public interest element in an effort to avoid encouraging individuals seeking to promote their own interests or to engage in personal battles through the procedure. For this reason the use of the title "public interest disclosure procedure" as opposed to "whistle-blowing procedure" may be preferred.
Definition of "malpractice": Dangers include categories of misconduct which are vague and imprecise.
Designated officers: Who will be responsible for assessing an initial internal disclosure and recommending as to how the matter should be dealt with? Should any training be offered?
Confidentiality: Up to what stage should confidentiality be guaranteed?
Duplication: There is the danger of the procedure adding, in effect, another layer to the complaints or appeals process.
External disclosures: At what stage should an external disclosure be permitted and to what authority or authorities should an individual make the disclosure?
Victimisation of "whistle- blowers": What protection should be provided?
Abuse of the procedure: What sanctions should be invoked against an individual who makes an external disclosure maliciously or unreasonably?