Of course, nurses in Attree’s interviews might have witnessed how those raising concerns before them had been treated. In England, the public inquiry into the failings of the Mid Staffordshire NHS Foundation Trust described the experiences of Nurse Donnelly who, in a protected disclosure under the UK’s whistleblowing legislation, said she had been asked to fabricate patient nursing notes to conceal the number of patients whose length of stay in the Accident and Emergency department of Stafford Hospital was breaching the four-hour waiting time target. That is, she had been asked to lie, to make it look as though some patient waits had not been in excess of four hours. Before she disclosed, she had sought advice from her Royal College of Nursing representative, who told her that there was little that could be done, and that she should just ‘keep her head down’ (Francis 2013a, p.109). In other words, do nothing.
Nurse Donnelly stood out from her peers in her decision to speak up about wrongdoing. She went against the grain of the organizational culture she worked in. In general, weighing up whether to report wrongdoing hinges, in part, on the whistleblower’s perceptions of the support or back-up they’ll get from their immediate manager if they do. Whistleblowing is more likely in organizations that support it, and which are themselves perceived to be fairer and ethical (Miceli and Near 2005). An employee may be more likely to report if they think their manager will back them up. By the same token, how the employee regards organizational whistleblowing policies influences their decision to whistleblow (Sims and Keenan 1998). Supervisor support for whistleblowing, and informal policies to support external whistleblowing, are significant predictors of whistleblowing. All of these are factors directly influenced by managers in the particular organizational culture and milieu: ‘…organization leaders create an environment of support and encouragement for their employees to speak up and blow the whistle on illegal, unethical, or illegitimate activities’ (Sims and Keenan 1998, p.420).
Key constituents of this ‘environment of support and encouragement’ to speak out are legal rights and protection, trade union support and communicative cultures in organizations where employees can freely voice opinion and criticism, and report wrongdoing, poor practice or corruption. In extensive studies on whistleblowing among public officials in Norway, Skivenes and Trygstad (2010) found that employees witnessing serious wrongdoing at work generally voiced their concerns and reported misconduct they observed to someone. Two-thirds of the 834 whistleblowers in this study said changes had come about as a result of their speaking out; eight out of ten reported they had had a positive response to their concerns. Employees were more likely to report misconduct if the person responsible was a subordinate or colleague, rather than an immediate supervisor or senior manager. Being a member of a trade union increased the likelihood of whistleblowing; and good contact with employee representatives increased the probability of external whistleblowing if the initial concern had not been responded to. Employees who came into frequent contact with their immediate supervisor were more likely to get a positive response to their concerns, and to be less likely to go outside the organization with their concerns (Skivenes and Trygstad 2010).
So the wider context counts when it comes to the likelihood that an employee will raise concerns. If wrongdoing is sufficiently bad, if it is observed, and if the employee thinks that by raising a concern they can stop it, without suffering personal detriment and harm, they are more likely to act. Employment protection, the right and support to raise concerns, and a workplace culture where it is expected, rather than mandated, that employees will raise concerns and be supported when they do, significantly influence the likelihood of reporting. Employees in Skivenes and Trygstad’s study were working in the Norwegian public sector, where there is a high rate of trade union membership (86 per cent of public sector employees are unionized). In Norway, employees have a constitutional right to raise any concern not deemed confidential in law, and they have the right to report misconduct. Compared to the US and UK, these employees have strong protection against unfair dismissal. Employee rights in Norway support whistleblowing activity: ‘Norwegian employees, to a great extent, perceive their whistleblowing activity as positive and effective’ (Skivenes and Trygstad 2010, p.1091).
The Australian survey (Brown 2008), referred to earlier, found the decisions of public sector employees to blow the whistle were strongly influenced by the culture of their organization, as well as by the perceived seriousness of the wrongdoing and by their belief as to whether reporting the wrongdoing would serve any good purpose. Reporting was more likely when employees believed the wrongdoing was serious and frequent, when they had direct evidence of the wrongdoing, and when it affected them personally. If the wrongdoing involved a lot of people, or the perpetrators were senior to the whistleblower, then the employee was less likely to report (Brown 2008).
Reporting wrongdoing, and getting it put right, are very hard where bad or illegal practice is commonplace and tacitly tolerated, or where whistleblowing procedures feel like an obstacle course designed to trip up those bold enough to try and use them. When they are confident their concerns will be listened to, employees are more likely to speak out (Brown 2008). The main reasons for not reporting is a belief that nothing will be done about the wrongdoing, or that the employee will suffer reprisal – in other words, that the messenger will be shot while the message goes unheeded. Speaking truth to power is always a tough call.
UK WHISTLEBLOWING IN LAW
Providing legal protection to the whistleblower making a public interest disclosure has been the stated aim of statute internationally for some time. In the UK, the Public Interest Disclosure Act 1998 (PIDA) was intended to protect individuals who make certain disclosures in the public interest. Here, from a legal point of view, whistleblowing is justified if a worker has a reasonable belief that a type of wrongdoing specified in the legislation affects the public interest. In changes implemented under the Enterprise and Regulatory Reform Act 2013, UK whistleblowers have protection from victimization by co-workers, as well as employers.
In the UK, the operative provisions of PIDA are contained in Part IVA of the Employment Rights Act 1996. They apply to both the public and private sector and cover most, but not all, workers. (In 2016, members of the armed forces, intelligence services and volunteers do not have protection under the Act’s provisions. Some self-employed contractors may have protection under PIDA, although most do not.) There is no statutory right to disclose in the UK, although a contractual right may exist. Types of disclosure that can give rise to employee protection are called ‘qualifying disclosures’ and cover matters such as where the worker reasonably believes the concern might be a crime; or where there has been a failure to comply with a legal obligation; or one concerning potential damage to the environment; or danger to the health and safety of a person. Most protection under this law is given to those who disclose information internally. However, workers can disclose to a person prescribed in the relevant regulations if they reasonably believe that the matter falls within that person’s remit, and that the information and any allegation contained in it are substantially true. Wider disclosures can be made if the worker fulfils additional requirements – for example, they are not disclosing for personal gain; they have already disclosed the information to the employer (unless they believe they would suffer detriment, or the employer would destroy evidence if they were alerted). Detailed provision is also made for the external disclosure of information about exceptionally serious wrongdoing. The worker has a right not to suffer detriment for making a protected disclosure. But retaliation against the whistleblower is not a criminal offence in the UK, and it is the case that whistleblowers may find themselves vulnerable to victimization and dismissal following their speaking out.
How far these legal provisions have protected UK employees is a moot point. De Maria (2006, p.647) called whistleblowing legislation the ‘state management of dissent’,