Legislation and policy

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Here you can find the background to Freedom to Speak Up (FTSU), legal frameworks and policy that underpins and supports raising concerns.

Freedom to Speak Up review 

When Sir Robert Francis conducted his review in 2014, he sought a wide range of views from across the NHS. In early 2015 his final report included a number of recommendations, with actions for professional and system regulators and NHS organisations, and to help foster a culture of safety and learning in which all staff feel safe to raise a concern. Two key elements included the appointment of a local FTSU guardian, now a requirement of the NHS Standard Contract and the establishment of The Care Quality Commission's National Guardian for the NHS. A summary of the key actions and recommendations can be found in our summary.

Department of Health consultations

The Department of Health (DH) then published a consultation in February 2015 on a package of measures for the implementation of recommendations, principles and actions set out in the FTSU report. NHS Employers responded to the consultation, after engaging with employers and gathering evidence. The DH published its Learning not blaming report in July 2015, confirming next steps to improve patient safety. Subsequent DH consultations and others along with our responses can be found in our Working in partnership for you section. 

NHS Constitution

The NHS Constitution establishes the principles and values of the NHS. It sets out rights and responsibilities for patients, public and staff to ensure that the NHS operates fairly, safely and effectively. Some amends were made in July 2015 to further reinforce the recommendations from FTSU. 

Public Interest Disclosure Act 1998

The Public Interest Disclosure Act 1998 (PIDA) is the whistleblowing law that protects employees by providing that employers should not victimise any employee who raises a concern internally or to a prescribed regulator.

The Act covers all workers including temporary agency staff, individuals on training courses and self-employed staff who are working for and supervised by the NHS. It does not cover volunteers, although as a matter of good practice, it is strongly recommended that employers make volunteers aware of their local policy and procedures for raising concerns and they are clear about who they can go to for further advice and guidance internally and outside of the organisation.

Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act (ERRA) introduced a number of key changes to PIDA, targeted at strengthening protections for whistleblowers, which includes:

  • a ‘public interest’ test where workers have had to show that they reasonably believe that the disclosure they are making is in the public interest
  • the removal of the test of ‘good faith’ which allows whistleblowing claims to go through the employment tribunal system without being too easily dismissed for not being made in 'good faith'
  • the introduction of a redress for workers who suffer any form of bullying or harassment by a co-worker, as a result of them reporting a concern. This means that co-workers can be held personally liable where it is proven that they have bullied or harassed any member of staff as a direct result of them reporting a concern, employers may also find themselves vicariously liable, unless they can provide sufficient evidence that they took all reasonable steps to prevent the bullying or harassment
  • an extension of the scope of the definition of 'worker' to further clarify who is covered by the legal provisions.

Review of legal frameworks for whistleblowers

In 2014 Business, Innovations and Skills (BIS) published a report outlining key findings from their call for evidence on the whistleblowing framework, as result of a commitment made during the passage of the Enterprise and Regulatory Reform Bill in 2013. The Bill received Royal Assent and came into force in April 2014. See our employer informed response.

The report made eight recommendations to help address issues and barriers in the reporting of, and dealing with public interest concerns:

  • Improved guidance for individuals, including clarifying issues such as the invalidity of gagging clauses. See our guidance on settlement agreements and use of confidentiality clauses.
  • There is a need for best practice guidance and/or a non-statutory code of conduct. See the whistleblowing guidance and code of practice on the BIS website.
  • Making clear the position in relation to cost awards, The government will take steps to ensure that people are fully aware of the general position. Where a case is successful in an employment tribunal, arrangements will be in place to reimburse the individual.
  • Assessment, in liaison with the prescribed bodies of the current referral system to identify if any changes need to be made.
  • Introduction of a duty to report, making clear that all prescribed bodies/persons (including professional and system regulators) will be required to report this information annually. See further guidance published by BIS – Prescribed bodies: annual reporting requirements on whistleblowing (March 2015).
  • A commitment to update of the prescribed bodies/persons list on an annual basis to ensure that this remains accurate and up to date. Download the latest version of the prescribed bodies/persons list from the GOV.UK website.
  • Issue secondary legislation to include relevant groups which are currently excluded from protections, including student nurses. Others under similar arrangements to student nurses are likely to be considered in due course.
  • Explore various options to promote the sharing of best practice and learning.

The Bribery Act

The Bribery Act 2010 and guidance is available from the Ministry of Justice, targeted at helping employers ensure their local policies and procedures are in line with the legislation and, most importantly, are tied into whistleblowing arrangements.

Health Service Circular 1999/198 "The Public Interest Disclosure Act 1998: Whistleblowing in the NHS"

This Health Service Circular requires every NHS trust to have robust policies and procedures in place which enable staff to raise concerns in compliance with PIDA.

PAS 1998 Whistleblowing Arrangements Code of Practice

The British Standards Institute (BSI) and PCAW developed a standard for whistleblowing which is available as a Publicly Available Specification (PAS) for individual use. The PAS sets out good practice for the introduction, revision, operation and review of effective whistleblowing arrangements.

The document was originally developed to be of assistance to organisations across the private, public and voluntary sectors and it is informed by UK whistleblowing legislation and PIDA. The PAS does not claim to include all the necessary provisions of a contract. Organisations are responsible for its application and should be aware that compliance with its recommendations does not necessarily give immunity from legal obligations.

PAS 1998 Whistleblowing Arrangements Code of Practice can be downloaded from the BSI website.

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