Whistleblowing in Care Homes

This article was written by the team at Stephens Scown LLP.

Whistleblowing-related claims carry potentially unlimited damages, so the stakes couldn’t be higher for care homes to handle whistleblowing correctly.

Whistleblowing in care homes

Whistleblowing in care homes is an important issue, but is still sometimes overlooked by employers. Taking into account that it could protect vulnerable people, prevent harm, avoid claims and reputational damage, it’s essential to take appropriate action to deal with it.

Whistle-blowing in the workplace is when a member of staff informs their employer of malpractice that has come to their attention. In a care home this is often based on wrongdoing they have seen in the delivery or management of care. Examples of concerns that may be identified as whistle-blowing in a care home could include unsafe care of residents, poor administration of medication, breach of health and safety requirements, or possible fraud.

What is Whistleblowing? A recap

Whistleblowing is a term that often gets used without either employers or staff really understanding what is needed to qualify for protection. It is a complex legal area and can give rise to cases with large compensation awards, so do take advice. To be protected under the Public Interest Disclosure Act 1998 (PIDA) and Employment Rights Act 1996 (ERA) a ‘whistleblower’ has to be an employee or worker. In a care home this could include employees, former employees, agency workers, freelance workers, and apprentices.

There are six types of disclosure that are protected:

1. A criminal offence
2. Miscarriage of justice
3. Breach of any legal obligation
4. Danger to the health and safety of an individual
5. Damage to the environment
6. The deliberate concealing of information about any of the above

What are the other tests?

Whether a whistleblower qualifies for protection also depends on these tests:

• Disclosure of information: has this actually happened? Merely gathering evidence or threatening to make a disclosure is not sufficient.
• Reasonable belief: the worker must have a “reasonable belief” that the information tends to show one of the subject matter failures had occurred or was likely to occur.
• In the public interest: the worker must have a reasonable belief that the disclosure is in the public interest. Recent case law demonstrates that a disclosure involving a vulnerable adult in a care home is likely to meet the public interest test.
• The identity of the person to whom the disclosure is made (further conditions depend on who this is). Internal disclosure (to a manager or owner in the care home) is the encouraged method. A disclosure to CQC (as the ‘prescribed person’) is likely to gain protection quite easily. Although, the person disclosing would need to reasonably believe the matter falls within the CQC area of responsibility and that the information and any allegations are substantially true.

What protection does PIDA create for workers?

The main protections are against:

• ‘Detriment’: workers have the right not to be subjected to any detriment in their employment on the ground that they have made a protected disclosure. The meaning of ‘detriment’ has been construed broadly by courts, but is based on a person suffering disadvantage in the circumstances in which they have to work. Detriments could include being ignored for promotion, or sidelined from training and development opportunities (for example)
• Dismissal: employees will be regarded as automatically unfairly dismissed if the reason (or principal reason) for the dismissal is that they have made a protected disclosure. The normal two-year qualifying period for unfair dismissal does not apply so you should be aware of this risk from day one of employment

What might you not be aware of?

Volunteers and the self-employed are not (or unlikely to be) protected by PIDA. But you should still take their concerns raised seriously, not least for reputational risk. A whistleblowing disclosure does not need to be in writing. It can be as simple as a verbal report from an employee to their line manager. Ensure managers know this.

As well as vicarious liability for the care home itself (in a successful claim) since 2013 workers can also name individuals as respondents to a tribunal claim, as personal liability can arise for those who are found to have victimised a whistleblower. This is another reason to take complaints seriously and deal with them appropriately. Senior individuals may need to take their own legal advice in such a claim.

Remember that whistleblowing complaints can come from different parts of the organisation, including from senior employees such as the care home manager (for example this might arise there has been a breakdown in senior working relationships).

Our Top Tips

Remember, there is no upper limit on the amount of compensation that might be awarded in unfair dismissal or detriment cases under whistleblowing law. It is crucial that as an employer you have immediate access to good quality, unambiguous legal advice. This advice needs to be confidential; non-lawyers’ advice can potentially be accessed by the employee within litigation as it does not attract legal privilege.

Care homes should:

1. Take advice, at an early stage, to ensure you deal with all complaints effectively, and minimise the risk of a claim.
2. Review your Whistleblowing Policy regularly and ensure it is fit for purpose.
3. Train managers to ensure awareness of what could amount to a protected disclosure, and your policies on how to deal with them.
4. If you receive a complaint, agree on a strategy and direction so that tactics are decided from the earliest point and instigate an investigation at the outset.
5. Be aware there are free resources and support available for both workers and employers to support on whistleblowing via the CQC, Whistleblowing Helpline for employers in the NHS and social care, and the charity Public Concern at Work.