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Make sure you could handle a whistleblowing incident

There is more onus than ever on health professionals to report workplace concerns – so what steps do employers and managers need to take in today’s environment? Solicitor Julia Gray explains the vital points

The recent exposure of the poor hygiene practices of Nottinghamshire dentist Desmond D'Mello is a high-profile example of whistleblowing. This and other scandals such the Francis report that have emerged over recent years have acted as a catalyst for growing interest in this area.


The General Pharmaceutical Council (GPhC) has responded to this interest by putting a greater focus on whistleblowing and, last month, suggested that fitness-to-practise procedures should be used in some cases of failing to report concerns. This makes it clear that pharmacists and technicians – including locums – are obliged to report serious issues in their workplace as part of their professional standards.


With this in mind, it is more important than ever that pharmacy employers and managers understand their roles and responsibilities. So would you be confident in dealing with whistleblowing in your workplace?


What qualifies as whistleblowing?

The Public Interest Disclosure Act 1998 (PIDA) affords protection from dismissal or detrimental treatment to certain groups of people who report concerns if they fulfil certain criteria. Employees, agency staff and trainees are protected, but volunteers and the self-employed are among those who currently are not.


The legislation is complicated, but there are three key criteria whistleblowers need to fulfil:

1. The whistleblower must have a reasonable belief that one or more of the following has taken place:

  • A criminal offence
  • A breach of legal obligation
  • A miscarriage of justice
  • Danger to health and safety
  • Damage to the environment
  • Concealment of any of the above.


2. The disclosure must be in the public interest


3. The disclosure must be made through the correct channels, for example to the employer, the police or a regulatory authority such as the GPhC or Care Quality Commission (CQC)


There is no longer a requirement that the disclosure is made in good faith. However, if it’s raised in bad faith – for example, for the primary purpose of financial gain – then a whistleblower’s compensation might be reduced.


It is not always easy to recognise whether a complaint qualifies as a protected disclosure. Generally speaking, any genuine concern about clinical practice or dispensing that may cause harm to the public’s health (or the health of an individual patient) would qualify. A protected disclosure is different from a personal grievance, but cases involving a combination of personal gripes and professional concerns can be more difficult to judge.


Where valid, legal claims from whistleblowers can be complex and expensive to defend. Unlike unfair dismissal claims, there’s no need for a minimum qualifying period of employment and potential awards are uncapped.


What employers and managers should do

1. All pharmacies should have a whistleblowing policy in place so, as an employer, you must ensure you have one. If you are in a managerial role, you should be familiar with your organisation’s policy.


2. Disclosures should be taken seriously, treated in confidence and thoroughly investigated.


3. Don’t shoot the messenger! Whistleblowers have a right not to be subjected to a detriment or dismissal as a result of having raised the concern. Examples of a detriment would include bullying, exclusion from the workplace, rejection of a promotion application or an enforced transfer to a different workplace.


4. Allegations that are false and malicious can be dealt with robustly but managers will need strong evidence and expert HR input.


It is important to remember that staff who are empowered to provide feedback and raise concerns can contribute towards a culture of learning and improvement, which is positive for everyone. The GPhC’s Guidance on Raising Concerns (published February 2012) suggests how employers can create an environment in which employees feel comfortable raising concerns, as well as giving information for staff about disclosures.


Julia Gray is an associate for health and social care law firm Hempsons, specialising in employment law


C+D reader offer

Specialist healthcare law firm Hempsons is offering 10 minutes of free advice to pharmacists in need of legal advice or clarification. Call 020 7839 0278 and ask for the Pharmacy Advice Line

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