Whistle-blowers are damn nuisances aren’t they?

– The Pitfalls of Whistleblowing in UK Schools –

Official figures from the Standards and Testing Agency revealed that 793 maladministration investigations were carried out in 2018 – a rise of more than 50% in two years according to the Independent. 

Data compiled and analysed from the Teaching Regulation Agency, shows us that sexually motivated and other inappropriate conduct was the reason for a third of teaching bans between 2013 and 2018. 

The charity, Protect, say that between 2020 and 2022 they received the highest number of calls about wrongdoing in the education sector than any other profession. In the majority of cases concerns will have been raised by well- intentioned individuals or, as legislation has it, – Whistle-blowers.

What is whistleblowing?

Whistleblowing occurs when an employee raises a concern about an alleged wrongdoing, including corrupt, illegal or unethical behaviours in a public or private sector organisation. The disclosure must be in the public interest and not for private gain. 

Emma Knights, the Chief Executive of the National Governance Association, writes ‘Arguably the need to speak out is important in the education sector, which deals with young and vulnerable people , people to whom there is an overriding duty of care’. 

What are the pitfalls faced by whistle-blowers?

In reality, many whistle-blowers say they face micro-aggressions, spurious claims of misconduct, gas-lighting and compromised or lost career opportunities.

Writing for Protect, Louise O’Neill explains how ‘gas-lighting’ involves the whistle-blower being told  ‘they have not quite understood the situation’, that what they witnessed is ‘part of a bigger picture’  and that it is they who have ‘failed to fit in’. 

O’Neill cites psychologist Doctor Jennifer Freyd (https/www.jjfreyd.com/about-research) when explaining the concept of ‘DARVO’ – Deny, Accuse, Reverse, Victim and Offender. So now the whistle-blower will hear comments as ‘You are intimidating and harassing me’ and ‘Your messages are harassing and hurtful to me’.

Discrimination following whistle-blowing does not end when the whistle-blower leaves the school gates. ‘Work and life intertwine in teaching’, ‘with threads running into and over other threads’.

Whistle-blowers may never have come across the term and it is not a particularly helpful one. They may not know that a school has a whistle-blowing policy and there are strict guidelines to follow. 

There is no legal aid available for whistle-blowers and legal advice can be expensive. Furthermore, what falls within the arena of a protected disclosure can be confusing.

The All Party Parliamentary Group believes that legislation is no longer ‘fit for purpose’. They are seeking a revised definition of whistle-blowing to include ‘any harmful violation of integrity and ethics’, even when not criminal or illegal. 

Mis-stepping.

Without access to legal advice before, during and after whistle-blowing, it is likely that a whistle-blower will find themselves having to evidence concerns, mend reputational damage and deal with resulting treatment, causing them to mis-step in the process or face detriment even when they have followed due process.

For instance, a professional couple were forced out of their jobs from a school in the south of England for exposing ‘systematic exam malpractice’. Rianna Croxford. ‘Whistleblowers: We spoke out and lost our jobs’. (15th July 2019) BBC News. (bbc.co.uk).

It is a failing in the system that claims of unfavourable treatment following whistleblowing are commonly dealt with under an internal grievance policy. This means that the organisation whom concerns have been raised against, is then in charge of determining the outcome. 

In one case, a SEN teacher lost her job when a panel found she had stood on a pupil’s foot while he screamed, pushed a pupil down when he tried to get up and shouted and screamed at children. However, the teaching assistant who raised concern was ostracised and ultimately dismissed from her position. 

Laura Fatah, Policy Officer of Protect writes “The problem of accessing justice when you’ve lost your job, have no lawyer, and are facing a strong armed employer is sadly all too familiar’. 

Croxford reports only 3% of the 1,369 employment tribunal cases brought in connection with test maladministration between 2017 and 2018 were successful according to Government figures. A report by the University of Greenwich found that when examining employment tribunal outcomes between 2015-2018, women who whistle-blow are less likely to be represented or succeed.

What are the challenges and benefits of whistle-blowing for leadership? 

School leaders perform a delicate balancing act in protecting all stakeholders including the rights of individual(s) whom claims are made against. 

Dealing with concerns effectively can demonstrate an appetite for improvement, minimise the risk of more serious breaches, enhance structural practices, increase productivity, retain vital skills and encourage the best applicants. 

Failing to listen and investigate concerns can result in reputational damage and time lost in defending claims and resulting legal proceedings.

Perhaps the worst injustice, however, is to the very people to whom there is an overriding duty of care and for whom the vast majority of staff work tirelessly to educate and safeguard – the children. Every child Matters. Every school day matters. Every year group matters.

Let’s Fix It.

Protect is seeking to reform the law so that whistle-blowers have access to greater legal support and guidance, while Baroness Kramer’s Bill introducing an Office of the Whistle-blower is working its way through the House of Lords. Schools which are geared up to deal with concerns effectively, will already be ahead of the curve whatever future changes in law and practice may follow.

How can leadership teams engage effectively with whistle-blowers?

1. Look and interpret facts and patterns. Have concerns been raised before?
2. Containing a situation is not the same as dealing with it. 
3. Do not make the whistle-blower do your job. Whistle-blowers are witnesses/messengers, not investigators.
4. Maintain confidentiality. 
5. Avoid impromptu, unrepresented meetings. 
6. Avoid polarising individuals, as this serves only to distract from the original concern.
7. Create a safe environment in which stakeholders can voluntarily disclose mistakes/breaches.
8. Roll out training on your School’s whistle-blowing policy.
9. Embed a culture of honesty. 
10. Imagine potential harm if an individual turned the other cheek to something they knew to be wrong, because they have seen how a previous whistle-blower was treated.
11. Consider whether it is appropriate to have staff and Governors as eg, Facebook “Friends”, who have access to and are commenting on every aspect of your personal life. 
12. Look around your School. Who sits on your leadership team and at the table of the Board of Governors? Is diversity reflected anywhere? Lack of such can lead to conformity of thought and exclusion in dealing with concerns.

What can whistle-blowers do to mitigate loss?

1. Consult with a Solicitor, the CAB, ACAS or speak with Protect or WhistleblowerUK before you raise the concern and harness that support going forward.
2. Read the whistle-blowing policy before raising a concern.
3. Be clear what and why you are raising a concern.
4. Ensure meetings are scheduled, recorded and you are represented. 
5. Be realistic. Potentially harmful cultures are rarely remedied by one person/small group particularly if lower down in the hierarchy.
6. Avoid Colluding with other colleagues/witnesses. Others may speak up or they may not. Be prepared to go it alone.
7. Be patient. Potentially harmful cultures will take time to unpick if found to be present.
8. Do not sign any document (eg, NDA) without getting legal advice.
9. Check in with your mental wellbeing. The institution will stand long after you have gone. If there isn’t the vision for change, you alone are not responsible for it.

‘Integrity is doing the right thing, even when no one is watching’ (C.S. Lewis)

Against the backdrop of a system that is largely autonomous and results driven, structures and procedures can become ethical quagmires and a perfect storm for conflict. 

Protect asks us to hold each-other to account courageously. Indeed, there is a moral imperative to do so.

‘School leaders can find themselves in uncomfortable positions’, but by working together ‘the best leaders will use the experience as a catalyst for change’.