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Whistleblowing in higher education: All about to change?

Tom Long, legal director and employment lawyer at Shakespeare Martineau, on what the new Office for Students means for flushing out malpractice in HE

Posted by Julian Owen | June 26, 2018 | Finance, legal, HR

Under the new Office for Students (OfS), the importance of whistleblowing in UK higher education (HE) is set to increase, and the creation of a new regulator quite rightly offers employees who are thinking of speaking out an extra source of potential interest in the disclosure. However, for HE institutions, the interest of the OfS in whistleblowing could place additional pressures on senior members of management and Governors if the number of whistleblowers increases significantly.  

The OfS legally came into force in January 2018, being the first regulator of its kind in higher education. The new body is designed to promote students’ interests and hold universities to account over matters such as administrative issues and areas of public interest, into which whistleblowing falls. 

Whilst there is currently no set deadline, the majority of higher education institutions in England will be required to register with the OfS. As part of its role, the regulator will monitor institutions to ensure that they are not breaching their conditions of registration.  The monitoring will take various forms, but one particular area of interest for the OfS will be information obtained via whistleblowing. 

The current legislation regarding whistleblowing has been around for 20 years, with the Public Disclosure Act 1998 protecting workers from detrimental treatment from their employer or dismissal if, in the public interest, they were to blow the whistle on perceived wrongdoing. Within the Act, the employee must reasonably believe that the information they hold relates to one of six specified types of wrongdoing: criminal offences; breach of a legal obligation; miscarriages of justice; danger to the health and safety of any individual; damage to the environment; or the deliberate concealing of information about any of the above. 

As the existing legislation has been in place for many years, institutions are likely to have whistleblowing policies and procedures, yet their experience of receiving and addressing whistleblowing complaints may be quite limited. Policies tend to have similar themes and processes across institutions, particularly in terms of routes for escalation. For example, initial disclosures should often be made to a senior individual within the organisation, sometimes a Head of Legal or Governance or similar, with any following investigation of the issue carried out by a further senior member of management before the case is referred to the Vice-Chancellor or the Board of Governors, for further consideration and/or a hearing, and an ultimate decision on proposed action. 

This process reflects the seriousness with which whistleblowing issues must be taken, however, it also highlights the length of time senior members of institutions can spend addressing whistleblowing disclosures.  

"HE institutions now have the opportunity to create a culture where staff feel confident reporting wrongdoings and breaches of the law, whilst being reassured that these will be handled correctly."

The OfS’ potential reliance on whistleblowing as a source of information, and their explicitly stated interest in this issue, means that the number of internal whistleblowing disclosures is likely to rise as the new regulator becomes bedded into the HE sector.  

Whilst the OfS itself is unlikely to give any guidance around what a good whistleblowing policy should look like at this time, it is imperative that any disclosure - however large or small - is dealt with swiftly and directed through the correct channels. This includes demonstrating that the institution has taken the matter seriously and that any findings are reported back to the individual in a timely manner and action is taken to address the problems. 

Previously, if a whistleblower was unsatisfied with the internal results of an investigation, there was no obvious route to escalate disclosures, although HEFCE and QAA were possible avenues to pursue. There is now no doubt that it should be the new OfS. 

Yet, institutions should be aware of some of the potential effects that the new reporting requirements may have on administrative processes. Should the new regulations cause the number of disclosures to rise, senior members in the institution will have to dedicate more time to the proper investigation of individual cases. With this in mind, institutions must consider whether their current procedures are fit for purpose and whether they have the capacity to deal with a potential increase.

When searching for other options, it can be helpful to look at how other sectors deal with this issue.  Within the health sector, whistleblowing has been an area of focus for many years. As the result of a national review, the NHS made the decision to nominate an individual within each NHS Trust, titled a ‘Freedom to Speak Up Guardian’ to handle disclosures. Whilst not necessarily a senior role, this independent and impartial individual can be approached by anyone with a whistleblowing concern. Crucially, these individuals have the ear of anyone in the organisation, including senior management staff.

"The OfS’ potential reliance on whistleblowing as a source of information, and their explicitly stated interest in this issue, means that the number of internal whistleblowing disclosures is likely to rise as the new regulator becomes bedded into the HE sector."  

Whilst it would be wrong to assume that one size fits all and that this solution would directly transfer into the education sector, if institutions do find that they are experiencing a large increase in whistleblowing disclosures, having a dedicated person to address and manage these enquiries may help streamline the process of addressing and actioning individual cases.

From a whistleblower’s point of view, it is crucial that institutions show that every disclosure is treated seriously and robustly. Therefore, it must not appear as though these disclosures are being pushed onto an administration department. However, a balance must be struck between appreciating the importance of each disclosure and allowing policies designed with a much lower level of whistleblowing in mind to hamstring the institution.

For institutions which believe that they currently have such policies, it is advised that they look at the number of people involved in any one complaint and consider streamlining the procedure. It should be noted that this is not to underplay the continued importance of whistleblowing, but rather to highlight whether certain elements of the procedures can be made more efficient and speedy.

Overall, the introduction of the new OfS should be a positive move for HE institutions. Whistleblowing is designed to flush out areas of malpractice and poor behaviour, and as such, an increased focus on whistleblowing should only improve outcomes within the sector. HE institutions now have the opportunity to create a culture where staff feel confident reporting wrongdoings and breaches of the law, whilst being reassured that these will be handled correctly.

Tom Long is legal director and employment lawyer at Shakespeare Martineau.

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