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Agenda Item No

 

The Vale of Glamorgan Council

 

Cabinet Meeting: 24 March, 2014

 

Report of the Leader

 

Whistle Blowing Policy and Procedures

 

Purpose of the Report

1.         To seek the approval of Cabinet on the proposed revision of the Council's Whistle blowing Policy and associated procedures to be adopted within the Council. 

Recommendations

1.         That Cabinet approve the amended Whistle blowing Policy, its administration and the reporting procedures to be adopted. 

2.         That the draft Whistle blowing Policy be referred to a meeting of full Council for approval and inclusion in the Council's Constitution. 

3.         That Cabinet note the additional information appended to the draft Policy to assist workers and their line managers who may be working under a collaborative agreement to raise Whistle blowing concerns with the appropriate organisation when the employment or the service responsibility falls outside of that of the Council. 

Reasons for the Recommendations

1.         To facilitate the implementation of a new Whistle blowing Policy to ensure that the Council has an effective framework for managing confidential reporting.

2.         In order for Council to approve and adopt an up to date Whistle blowing Policy and revised procedures in its constitution.

3.         For information purposes.

Background

2.         The current version of the Council’s Whistle blowing Policy which can be found on the Council's website was introduced in August 2000 and subsequently amended in 2002 and 2006 to take account of a number of changes including the Council's structure and points of contact.  In order to access the Policy, employees and line managers were signposted to the intranet where all policies are readily available to all employees.  The current policy is available to view on the StaffNet HR portal.  The current version of the Whistle blowing Policy will be found at Appendix A.  The draft amended Whistle blowing Policy for approval by Cabinet will be found at Appendix B.

3.         The Council’s Whistle blowing Policy is intended to encourage and enable employees to raise concerns with the Council without fear of victimisation, subsequent discrimination or embarrassment. 

4.         The, Whistle blowing Policy plays an important part in meeting the Council’s commitment to openness, honesty and ethical propriety and compliments the objectives of a number of other Council's policies and supports the Council's Anti-Fraud and Bribery Policy and the Code of Conduct for Qualifying Employees of the Council.

5.         Members of the Cabinet will be aware that at the meeting of full Council on the 26th       day of June  2013 it was agreed to undertake a full review of the Council's Constitution.  The Council has set up a cross party member's working party who meet regularly to discuss the review of the Council's Constitution.  The amended draft policy has been referred to the relevant Heads of Service and the recognised Trade Unions for consultation with a view to the policy being adopted as part of the Council's Constitution.   

6.         A review of the Council's existing Whistle blowing Policy is considered necessary to ensure that it reflects recent legislative changes, to update the contact details and to respond to the recommendations made following the completion of an internal Audit report which was carried out in August 2013.

Relevant Issues and Options

7.         The revised draft Whistle blowing Policy reflects the changes implemented by the Enterprise and Regulatory Reform Act 2013.

8.         A summary of the revisions made to the draft Policy reflecting changes implemented by the legislation are set out below :-

 

Legislative change

Revision made to draft policy

A change in the definition of “workerâ€

Policy amended to include reference to temporary employees, trainees and those workers employed through an agency and "independent contractorsâ€

The implementation under the legislation of a "public interest test", the previous requirement that a "disclosure" clearly afforded legal protection if the worker made the qualifying disclosure in "good faith" is removed.  The current test applicable on or after 25 June 2013 requires a concern reported by the worker in the public interest which in the reasonable belief of the worker tends to show one or more of the following:

-  Illegal practices;

-  A failure to comply with the legal obligation;

-  The health and safety of an individual whether this is a member of public or staff being endangered;

-  Damage to the environment;

-  Miscarriage of justice;

-  Deliberate concealment of any of the above.  .

All references to disclosures made "in good faith" have been amended to comply with the legislation so that a qualifying or protected disclosure is a disclosure of information made in the public interest, the worker reasonably believing that the disclosure is made in the public interest.

 

 

Provisions implemented under the new legislation which introduces employer liability for victimisation of "Whistle Blows" by co-workers and/or an agent of the employer. 

The new draft Policy has been revised to include the following “employees who victimise whistle blowers can be made personally liable for their own conduct, and the Council could be held vicariously liable if it has not taken all reasonable steps to prevent victimisationâ€

 

9.         The new draft Policy includes additional provisions including guidance for workers and their line managers to assist them in reporting the concern under the Whistle blowing Policy and progressing this within the Council.  In addition revision is included in the new draft Policy which affords protection for the "Whistle Blower" which can be achieved subject to the disclosure meeting the public interest test along with guidance for the "Whistle Blower" to raise their concerns externally, if appropriate and where to obtain free confidential and independent legal advice. 

10.      Additional guidance has been included within the draft Policy to assist both the worker and the manager in registering and progressing Whistle blowing concerns within the council. In addition, confirmation of the protection arrangements that the whistleblower will achieve (subject to the disclosure achieving the public interest test) along with guidance where the whistleblower can raise their concerns externally, where to obtain free, confidential and independent legal advice.

11.      The revised draft Policy adopts the approach to be undertaken in response to concerns and allegations raised anonymously including confidential reporting arrangements, and in particular circumstances when it may not be appropriate to maintain the confidentiality of reporting a concern.  A confidential Whistle blowing report form has been developed and is included within the Policy to assist those workers who are content to raise their concern through the council however completion is not compulsory.

12.      The revised draft Policy aims to provide assistance to workers and managers enabling them to distinguish between concerns which are personal and relate only to the individual rather than wrongdoing of more general nature which should be treated as a grievance to which the Council’s Grievance Procedure Policy would have applicability.  

13.      The revised draft Policy makes it clear that whenever possible, concerns should be reported to the individuals line manager with the appropriate authority and experience; if this is not appropriate to the next immediate line manager and in particular circumstances which are considered sensitive or are of a serious nature the individual is referred to guidance set out within the policy in reporting their concerns to alternative sources within the Council.

14.      In drafting the revised Whistle blowing Policy reference has been made to national Guidance contained within the Department for Business Innovations and Skills document entitled "Blowing the Whistle to a Prescribed Person" which is appended (in part) to the draft amended Policy.  The list identifies those organisations with interest/responsibility within Wales and identifies the prescribed persons "contact arrangements" which is included at Appendix 1 to the draft amended Policy.  The list is appended to the draft amended Policy to provide a signpost to assist both the worker and the manager to correctly identify the appropriate external organisation with whom concerns can be reported where those concerns falls outside the scope of the Council Policy.          

15.      Further,  a copy of the Wales Audit Office leaflet “Are you concerned about wrongdoing where you work?†is appended to the draft amended Policy to provide additional information guidance and advice in relation to the issue of wrongdoing appended to the Policy in Appendix 2.     

16.      It was recommended in the internal audit report that a centralised record of allegations/concerns is contained and procedural guidance as opposed to records being held within individual services and roles and responsibilities be clearly defined as follows - 

Key Responsibilities

17.      The Operational Manager Customer Relations is responsible for the registration and maintaining a central record of all Whistle blowing concerns in the council and to monitor the progress and outcome of each investigation undertaken.

18.      Directors are responsible for the receipt and populating the Whistle blowing central register and for the effective operation of the policy within their own Directorate in particular ensure that: –

·           each employee is aware of the policy and how to use it.           

·           Managers are effectively trained in the use of the policy.

·           whistle blowing concerns are appropriately recorded and managed.

19.      The Head of Human Resources will be responsible for updating the policy as appropriate.

20.      In all the above administrative procedures all concerns will be afforded confidentiality to meet the council’s obligations under the policy.

Responsible Officer

21.      The Council’s Audit Committee acting through the Monitoring Officer will retain overall responsibility for the maintenance and operation of the policy.

22.      The Monitoring Officer will be responsible for reporting the outcome of any concerns raised  to the Council’s Audit Committee in a confidential format.

23.      The recommendation set out within the amended draft Policy to create a central database meets the requirements of the Head of Strategic ICT in his capacity as the Senior Information Risk Officer (SIRO) and those of the Corporate Management Team. The database would be "locked down" with access restricted to those staff identified by the Operational Manager Customer Relations and to those staff identified by Directors for the input of  the information and updating progress. The databases will not contain any personal details, but be used solely for the purposes of codifying the number and progress of outstanding disclosures.  

Training and Communication

24.      Directors and Heads of Service will be need to ensure that -

·           all relevant  Directorate/Departmental policies and procedures take account of the Whistle blowing Policy.

·           the Whistle blowing Policy and the supporting attachments are to be made accessible to all employees/workers including employees, independent contractors and agency workers.

25.      All staff must attend appropriate induction, recruitment and selection and undertake appropriate refresher training on the Whistle blowing Policy.

Resource Implications (Financial and Employment)

26.      It is intended that the register for the confidential recording of Whistle blowing concerns will be included within the Council's existing Oracle/CRM system and be administered within existing personnel establishments.

27.      The Policy and procedures will apply to all employees of the council (excluding those working in a school and employed by a School Governing Body where separate arrangements will apply), independent contractors, temporary employees and trainees.  The policy also applies to those engaged through an external agency.  

28.      Employees are encouraged to consider obtaining the advice and support of their trade union when considering how to deal with their concerns.

Sustainability and Climate Change Implications

29.      There are no sustainability or climate change implications associated with this report.

Legal Implications (to Include Human Rights Implications)

30.      The law on Whistle Blowing was previously contained in the Employment Rights Act 1996 which was amended by the Public Interest Disclosure Act 1998 and affords employment protection to any worker who makes a "protected disclosure".  The legislation provides protection to the worker against victimisation and additional protection for those workers who report their concerns outside of the authority where there is no existing Whistle blowing Policy or effective whistle blowing arrangements in existence within the authority. 

31.      The draft Policy takes account of the changes necessary to respond to the requirements within the  Enterprise and Regulatory Reform Act 2013

32.      The Council has a commitment in its Anti-Fraud and Corruption Policy to confidential reporting which is afforded equal consideration within the draft Whistle blowing Policy.

Crime and Disorder Implications

33.      The Whistle blowing Policy will provide the means for all workers to raise suspicions of any concerns including potential criminal matters through an open and transparent process without fear of repercussions.

Equal Opportunities Implications (to include Welsh Language issues)

34.      The Human Resources team will support the application of this policy with advice to staff on this or any other linked policy such as the managing misconduct procedure.

35.      The Council incorporates the statutory equalities duties which apply to all its activities into policies and services as appropriate, as set out in the Council's Corporate Equality Strategy. We also recognise that in our society, groups and individuals continue to be unfairly discriminated against and we acknowledge our responsibilities to actively promote good community relations, equality of opportunity and combat discrimination in all its forms.

36.      During the development and consideration of any protocols the impact of equality of access will be considered, for example ensuring that all workers are able to submit a concern, in the manner which best suits their individual needs.

Corporate/Service Objectives

37.      This policy will provide the means for workers to support the council's strategic Core Value to achieve Transparency so that the decisions of the council and the application of the policies are open and provide a means for concerns to be raised where necessary.

38.      In addition, the Policy will form a key element to the council's Community Leadership objective so that the community/services users may retain their confidence in how decisions are made and are proud to live in the Vale.

Policy Framework and Budget

39.      The report is a matter for the Executive decision.

Consultation (including Ward Member Consultation)

40.      There has been consultation at the joint Employee Policy Formulation group at which both Teaching and Non teaching trade unions are represented. The comments of the recognised joint trade unions have been incorporated within the attached draft Whistle blowing Policy.

41.      The Head of Human Resources is in the process of reviewing the supporting guidance to the Whistle blowing Policy and will be so in consultation with the recognised trade unions.

42.      The Policy has also been developed with regard to guidance available from "Public Concern at Work" a reputable Charity which provides independent advice to employers and support to individual workers on Whistle blowing matters.

Relevant Scrutiny Committee

43.      Corporate Resources.

Background Papers

Appendix A - Existing Whistle blowing Policy.

Appendix B - Amended draft Whistle blowing Policy

Supporting documents to include:

- List of Prescribed persons (Wales)

- Wales Audit Office document - "Are you concerned about WRONGDOING where you work?"                                                              

 

Contact Officer

Adrian Unsworth - Operational Manager Human Resources 01446 709359

 

Officers Consulted

Corporate Management Team.

 

Operational Manager Legal Services

 

Responsible Officer:

Sian Davies - Managing Director