Do Better Academia's Response to the Consultation on the APPG “Whistleblowing” Report
1. Overview:
1.1 The Higher Education (HE) sector is a unique sector because it serves the essential public needs of research and education. However, the current regulatory framework is not comprehensive because it excludes students. In addition, the current system does not protect academic and non-academic staff against the imbalance of power between them and the university, which puts them at risk of retaliation and makes it difficult for them to get justice. In addition, the HE sector straddles the private and the public sector and includes workers and students, many of who have little or no financial resources.
1.2 Whistleblowing in the HE sector is essential to society because it helps uncover issues such as research misconduct affecting science and research integrity, which is fundamental to society’s trust in research; shortcomings in the university’s legal and moral duty of care towards students and staff; and financial misconduct, including misuse of university funds.
1.3 Do Better Academia is a not-for-profit group of volunteers who have experienced wrongdoing in the HE sector. We help others who experience wrongdoing in academia and campaign to introduce external, independent accountability to the sector. Do Better Academia has been active for one year and has collected numerous accounts from students, non-academic and academic staff.
2. Challenges faced by whistleblowers in the HE sector:
2.1 Universities and research institutes lack external accountability and effective external oversight which has led to a culture of entitlement and impunity. Retaliation against whistleblowers and against anyone who raises concerns is the rule rather than the exception. Do Better Academia knows of hundreds of students, academic and non-academic staff across the UK who have experienced wrongdoing and retaliation by universities and other academic institutions. This can range from bullying, discrimination (gender, disability, race, religion etc.), gaslighting, stalling promotion opportunities or career progression, victimisation and job loss, reputational damage, legal threats and even death threats. Do Better Academia has clear evidence and accounts of this wrongdoing and retaliation continuing even when the person has left the organisation and moved into new roles/places of employment or when they are endeavouring to gain new employment in other universities.
2.2 The challenges faced by whistleblowers in the HE sectors are numerous and include challenges specific to the peculiarity of the university sector:
2.2.1 As students are often not employed by the university, they are not “workers” and are therefore excluded from the protection of the Public Interest Disclosure Act 1998. This leaves them particularly vulnerable to being subject to detriment as a result of their protected disclosures.
2.2.2 Students rely on universities for the progression of their studies, their graduation and references to gain access to employment: they are, therefore, dependent on the university to treat them fairly and not to cause detriment to them. Students cannot move from one institution to another easily, as workers might be able to move from one job to the next, so they can be trapped and face a situation as to whether to give up their studies or continue to suffer retaliation. Any retaliation often causes serious harm to their career and their mental health; we know of a number of students being unable to graduate, developing serious mental illness and being unable to find employment even many years after reporting wrongdoing.
2.2.3 Students – and sometimes staff – often have their accommodation within the university’s own premises. This makes them especially vulnerable to the university’s retaliation because there is no “safe space” they can retreat to, thereby aggravating the effects of retaliation on their mental health. We often hear of students and staff becoming suicidal as a consequence of universities’ retaliation: if they have nowhere to feel safe, the effects of not having a “safe space” can be catastrophic.
2.2.4 Students, as well as academic and non-academic university staff that have only just entered the world of work, have often very limited financial means. Therefore, they often cannot afford legal representation and advice in dealing with any retaliation by the university arising out of their protected disclosure.
2.2.5 The HE sector is a close knitted world with allegiances and connections that extend beyond one university into other universities. Academic and non-academic staff who have made a protected disclosure and have experienced retaliation from universities have often found it difficult to find employment in other institutions because their university had unjustly warned the hiring institution against hiring this person, or because of allegiances across institutions due to financial conflicts of interest. This can leave them without employment as many academics’ recruitment opportunities lie solely within this sector. Such forms of detriment are often difficult to prove, and the individual actors inflicting detriment often belong to different organisations, often leaving whistleblowers with no legal recourse to address this.
2.2.6 Even academic and non-academic staff who have some savings can experience a major imbalance of power when facing legal or other retaliation from the university: universities have virtually unlimited funds to litigate, whereas individuals have limited resources, whether money, time or access to advice.
2.2.7 Workers have to litigate in the employment tribunal, where they can rarely recover their legal fees even if they win and they are also at risk of having to pay the other side’s legal fees, even if the other side has insurance. Litigating costs tens of thousands of pounds and the cost of litigating can outweigh the financial remedy that the whistleblower may receive from their tribunal, even if they win. Therefore, even taking the university to court can be a losing proposition even if they can afford legal representation.
2.2.8 Non-Disclosure Agreements (NDAs) are used in the HE sector to prohibit whistleblowers and other complainants from disclosing information relating to their complaint. This can have detrimental effects on the complainant’s mental health and ability to secure educational and employment opportunities in the future as they face the choice of violating the NDA or being disadvantaged for not disclosing vital information to future employers.
2.2.9 While the current legal framework allows legal recourse in cases of detriment or unfair dismissal (automatic dismissal) as a result of whistleblowing, there is no recourse for whistleblowers whose concerns have not been appropriately investigated or addressed. Given that protected disclosures are in the public interest, it is in the public interest to ensure that these are appropriately and transparently investigated, and remedial action taken where needed. In many cases, whistleblowers have no recourse if investigations are not carried out appropriately, as is often the case, by the organisation the protected disclosure is made to.
2.2.10 Protected disclosures are often required to be made to the institution itself. Given these institutions are conflicted, it is unsurprising that most investigations carried out, even by external firms appointed by universities are not independent or unbiased. When this occurs, whistleblowers usually must appeal, but the outcome of the appeal is also often decided by the same institution. This allows institutions to suppress matters of public interest to protect their reputations without appropriately investigating or addressing these matters. This is a loss to society as a whole, and likely allows practices that were complained about to continue unchecked. While some organisations are regulated by independent regulatory bodies, this is not always the case, and whistleblowers can often be left without the means to have their claims heard fairly and acted upon, even while unlawful or unethical practices at their universities continue, and those involved in these practices continue to hold prominent positions.
2.2.11 There is no clear framework or guidance around investigation of whistleblowing concerns. As there are no clear standards for these investigations, and whistleblowing policies can be quite broad, and are considered guiding principles only, there is no framework within which investigating bodies, or investigators of whistleblowing complaints can be held accountable. The scope of investigations is often set by the institution being investigated, which can lead to investigations being undertaken with a deliberately narrowed scope, with outcomes largely pre-determined. Investigations often take place without any transparency with regard to conduct or terms of reference. In these circumstances, whistleblowers often have no choice, but to accept the terms of the investigation, as they have no say in defining the scope or the conduct of the investigation.
2.2.12 Current employment law allows workers to seek recourse for detriment as a result of whistleblowing, within 3 months of the last detriment. However, detriment and retaliation is often complex and ongoing, with whistleblowers often experiencing continuing detriment over the course of years. The legal framework must recognise this, and clarify how the law applies in such settings, as detriment must be considered in the context of the background within which it has occurred, with multiple episodes considered in the appropriate context, rather than as single events. Furthermore, many workers may not be fully aware of the legal time limits until after this period has passed, leaving them with no recourse. It is also important to consider that given the short period of limitations for bringing a case, workers are likely to be forced to bring a case against their employer, while still employed, which can lead to further detriment.
2.2.13 Whistleblowers can become aware of unlawful or improper activity in the course of personal experiences or grievances. This does not negate the public interest of the disclosure even if the circumstances in which the knowledge was acquired were personal. There should be the same protection extended to these whistleblowers as to the whistleblowers that acquired public interest information in professional settings: all whistleblowers face the same uphill battle so they should all receive the same level of protection. The new guidance must take this into account so that their disclosure is not undermined.
2.3 To summarise, there is a clear imbalance of power between universities and individuals, be it students, staff or non-academic staff. There is also a lack of oversight of universities’ conduct, which leaves whistleblowers at the mercy of the institution without any recourse to a “higher” independent authority. Universities hold the strings to the whistleblower’s graduation or employment opportunities and have enormous resources whereas the whistleblower can have none. Universities’ power is often abused and whistleblowers have no recourse to justice.
3. Do Better Academia’s suggestions:
While current regulations endeavour to protect workers who become whistleblowers, there are several limitations and barriers in this process.
3.1 Protection of the legislation should be extended to include students and any “non-workers” because their disclosures can also be in the public interest and they are vulnerable to retaliation due to the disproportionate imbalance of power between them and universities.
3.2 One of the key aspects is support for whistleblowers is advice through the process, and pro bono (or legal aid) legal representation throughout the process. This would help evening out the imbalance of power and resources between the whistleblower and the university. The APPG “Whistleblowing” Report (The Report) envisages charging whistleblowers “set rates for legal representation by accredited practitioners”. The problems with whistleblowers having to pay for legal representation, even at a set rate, is that:
3.2.1 Students and early career non-academic and academic staff may not have any funds available and would therefore be excluded from accessing legal advice.
3.2.2 Those who can afford legal representation have to litigate against universities who have a legal department and millions of pounds available: the imbalance of power makes it such that individuals are likely to need to spend more than they can afford.
3.2.3 Because there is no external oversight to the HE sector, a central regulatory body that is able to have oversight of whistleblowers’ investigations and appeals would protect whistleblowers from retaliation. A central body that provides funding to whistleblowers as they go through their process is likely to disincentivise universities from taking retaliatory action, and also give whistleblowers more agency through this process.
3.2.4 In addition, there should be “costs protection” for the whistleblower, which is also used when the claimant has legal aid. Under the current legislation, “workers” would need to sue in the employment tribunal, where they could not recover their legal costs even if they are successful, which means they can be making a loss even if they win. Students, who are not “workers”, would need to sue in the County Court/High Court, where they can recover their reasonable legal costs if they win, but the university can seek from the student its own legal costs if they win the case making it prohibitively expensive for students to sue. This – and the high cost of legal representation – is one of the obstacles that prevents students from accessing justice through the court. Therefore, whistleblowers – if required to pay for legal representation – should have their legal costs repaid by the university if they win but should not need to pay for the university’s legal costs if they lose.
3.3 In relation to The Report’s proposal of “capped spend for both sides to the amount available to the whistleblower”, Do Better Academia welcomes the spirit of this recommendation. However, universities have in-house legal representation and other resources, including liability insurance, which individuals lack; therefore, the risk is that whistleblowers continue to be disadvantaged due to the imbalance of resources. Also, whistleblowers would continue to need to risk potentially all their savings and all they have to expose some truth for the benefit of society: this makes it deeply unfair.
3.4 The current legislation is also unclear about which organisations disclosures can be appropriately made to. Having a regulatory body administering this would provide clarity.
3.5 Attention should be paid to the impartiality of the investigating body itself. When whistleblowing investigations are carried out by organisations who have been implicated in wrongdoing themselves, appeals must be heard by independent regulatory bodies. Where an institution is not regulated by an independent body, these appeals must be heard by an external entity, such as the Office for Whistleblower, or an independent entity appointed by them.
3.6 There is a need for clear guidance for the conduct of whistleblowing investigations. These investigations should be carried out by an external panel of investigators, consisting of members nominated by the investigating bodies, as well as those nominated by whistleblowers, to ensure impartiality in proceedings. Observers, such as student representatives, or union members should be allowed to attend as witnesses. There should be guidance regarding how the terms of reference for investigations should be determined, as well as the conduct of investigations, reporting of results and recommendations. It is important for this process to be consultative, and iterative, with results shared with whistleblowers so they can comment on factual inaccuracies, or provide additional evidence, where needed.
3.7 It is important that alignment of investigation practice with provided guidance is strictly enforced. Penalties should be imposed on institutions when found to have breached policies and guidance in their conduct of investigations.
3.8 Transparency in whistleblowing investigations is vital. A central log of all whistleblowing complaints and outcomes should be maintained, within the public domain. Any information about whistleblowing complaints and investigations should be subject to freedom of information request, even when complaints are made to private entities, given the public interest nature of such complaints and proceedings.
3.9 In these cases, each episode of detriment should not be considered in isolation, but in the context of the ongoing detriment, as individual acts may seem justified, but an examination of ongoing events may reveal a pattern that is consistently detrimental to the interests of the whistleblower.
3.10 We support The Report’s recommendation of banning NDAs and the “full disclosure of spend by public sector organisations [including universities and research institutes] fighting whistleblower cases” and – Do Better Academia adds – any other complaint brought by students and staff. If NDAs are not banned, then whistleblowers should be protected to exclude any liability arising from disclosures in relation to their whistleblowing.
3.11 Do Better Academia welcomes The Report’s suggestion in relation to providing state funded counselling to whistleblowers and their families. Free counselling should be received promptly on request by the whistleblower and should continue for as long as the whistleblower needs support.
4. The “Office of the Whistleblower” Bill:
4.1 Do Better Academia welcomes the establishment of a body that supports whistleblowers through the whistleblowing process and beyond.
4.2 Section 3(a) of the Bill sets out as the powers in The Office of the Whistleblower to “give direction to and monitor activities of relevant bodies”. These bodies are going to be identified at a later time but the Secretary of State’s regulations. Do Better Academia believes bodies that whistleblowers make disclosures to, as well as about, should be subject to independent oversight. As explained in paragraphs 3.5 and 3.6, Do Better Academia believes that investigations by the body complained about should be impartial and fair to the whistleblower. Therefore, we would recommend that an independent body has oversight over the conduct of bodies complained about before, during and after internal or external investigations.
4.3 As set out in paragraph 3.7 of this document, Do Better Academia would welcome penalties for bodies that fail to comply with the law or with policies. Therefore, we would recommend that The Office of the Whistleblower be given the power to impose deterrents and penalties on bodies for this lack of compliance.
4.4 Do Better Academia recommends that the Bill gives the Office of the Whistleblower the power and the duty to keep a central log of all complaints and outcomes. As explained in paragraph 3.8 above, transparency in investigations is vital and the public and the media should be able to trust public disclosure investigations and to access information on their conduct.
4.5 Sections 3(c) and 3(d) of the Bill give the Office of the Whistleblower the power respectively to “form and maintain a panel of accredited legal firms and advisory bodies to advise and support whistleblowers” and “maintain a fund to support whistleblowers”. We welcome legal assistance for whistleblowers. However, as explained in paragraph 3.2 and following of this document, it is essential that whistleblowers have free legal representation throughout the process because of the imbalance of power and resources between students and university staff and the university itself. Do Better Academia would encourage the Bill to guarantee free legal representation for whistleblowers throughout the whistleblowing process and beyond, if required (for example, if the whistleblower is suffering retaliation). If free legal representation for whistleblowers is not possible, Do Better Academia recommends that whistleblowers be given “costs protection” so that they are not required to pay for the university’s legal costs if they were to lose at trial.
4.6 As noted in paragraph 3.11 of this document, Do Better Academia would like the “fund to support whistleblowers” to be used, in part, to support whistleblowers and their families with free counselling.
4.7 Section 3(e) of the Bill gives The Office of the Whistleblower the power to “provide financial redress to individuals whose disclosure is deemed by the Office to have harmed their employment, reputation or career”. We welcome financial compensation for the detriment suffered for whistleblowing. Do Better Academia encourages clarity as to how the Office would decide if such compensation is payable and how much compensation the whistleblower is expected to receive. Clarity is important because whistleblowers need to be able to assess the likely financial implications of whistleblowing on their finances. We also recommend that detriment should be considered in a wider context of ongoing detriment and patterns of the body’s behaviour, as explained in paragraph 3.9.
4.8 Section 2 of the Bill sets out the duties of the Office of the Whistleblower as “the administration of arrangements to facilitate whistleblowing.” We welcome clarity as to what facilitating means and what whistleblowers can be expected of the Office of the Whistleblower. For example, taking a telephone call or answering an email, providing web links of resources may all consider to be “facilitating” whistleblowing. However, all these activities are likely to fall short of the expectations – and needs – that many whistleblowers have. Do Better Academia would encourage the Bill to spell out what the Office of the Whistleblower is under a duty to do for whistleblowers with consideration of the challenges that whistleblowers face.
4.9 Do Better Academia would like the Bill – or other legislation – to extend protection of the legislation to include non-workers, such as students, and to either ban NDAs or excluding any liability to the whistleblower arising from disclosures in relation to their whistleblowing (paragraphs 3.1 and 3.10 of the document respectively).