Whistleblowing in care homes: a guide for employers
Peter Orton and Nick Jones, Partners in Lyons Davidson’s Employment Law department consider an employment law issue of particular relevance to the care sector
Sections of the care sector have been open to scrutiny in recent years, particularly by the press, for failures to identity and prevent malpractice within certain organisations and in turn, more whistleblowers are coming forward to report malpractice. Between March 2011 and June 2012, more than 4,300 whistleblowers came forward to complain about the treatment of elderly and disabled people in care homes.
It is imperative then, that organisations put practices into place to deal with whistleblowing. Such practices would help enable an employer to deal more readily with situations before they spiral and equally, it would give employees more confidence to feel that they are able to make such disclosures to employers without negative repercussions. One way of facilitating this is to implement an effective whistleblowing policy.
How would a whistleblowing policy help? If implemented correctly, it would encourage a culture whereby concerns are reported internally and at an early stage. This makes it easier for management to address concerns and avoid serious regulatory breaches or reputational damage. Damage to the reputation of organisations such as care homes can be catastrophic and, in the past, this has lead to a number of care homes being closed down.
An effective policy would help protect whistleblowers and send a clear message to staff and management about the importance of whistleblowing. It is a known fact that employees are often scared to report incidents out of fear of losing their jobs or being alienated. An effective policy would also minimise the risk of a whistleblower being dismissed or suffering a detriment that could lead to employment tribunal litigation under the whilsteblowing legislation.
The key is to keep the policy simple. It should be easy to understand and operate and be accessible to all. It should encourage concerns to be raised as soon as possible, preferably as soon as the worker has a reasonable suspicion and without the need for them to find supporting evidence. In order to reassure workers and encourage disclosures, a whistleblowing policy should set out the legal protection available to whistleblowers and make it clear that the organisation takes identifying and remedying a wrongdoing seriously. It should also specify potential consequences for victimising whistleblowers and provide for feedback to be given on the outcome of a disclosure. The policy should make clear that the employer will not tolerate reprisals against workers who make disclosures and that taking such reprisals will be treated as a disciplinary offence. It should also make clear that making a malicious false allegation would be a disciplinary offence and the overall process also needs to be as confidential as possible.
How to implement a whilstleblowing policy
Although it does not need to be formally agreed with the workforce, it would be best practice to introduce a whistleblowing policy through consultation with employees (or their representatives) at all levels of the workforce. This will enable the organisation to produce a procedure suited to the organisation, which has the confidence of the workforce and encourages them to make early disclosures internally. It is often advisable to appoint a named individual or individuals (a Whistleblowing Officer) outside line management to whom people can raise their concerns. In a care home, this should be someone other than the Registered Care Home Manager, as an employee may be disinclined to make a disclosure to their manager about practices in the home.
Although it is not possible to prevent malpractice in every event, by implementing a whistleblowing policy that encourages openness, an employer can certainly take steps to become more aware of it and set out the protection an employee will receive, so that they that they do not feel that they cannot make a disclosure. This in turn will result in the organisation being able to take the necessary steps to rectify any wrongdoing at an early stage.
For more information contact Peter Orton by emailing firstname.lastname@example.org
Lyons Davidson will be at stand B70 in Hall 11 at The Care Show, Birmingham NEC on 12/13 November 2013.
Posted on Nov 11th, 2013 by Lyons Davidson