Saturday 22 September 2012

Whistles, leaks and the public interest

In its 'Council at War' front page story on September 6th the Brent and Kilburn Times, LINK apart from  reporting the proceedings of the Brent Labour Group regarding the relationship between Muhammed Butt, the current Brent Council leader, and Gareth Daniel, then the Chief Executive, also published extracts from a series of e-mails.

The content of the e-mails vividly illustrated how the relationship was at breaking point. Daniel accused Butt of writing in a 'vitriolic and accusatory tone' and Butt described Daniel's e-mail as 'aggressive' and doubted whether they could continue to work together.

The Council's whistle blowing policy  is mainly aimed at uncovering fraud and offers protection to the whistleblower.. The most prominent local case has been Hank Roberts' reporting of alleged fraud over bonuses at Copland High School in a case which is ongoing. He has received official recognition for his whistleblowing.

In the case of community  schools the whistleblower can go to the chair of governors or the local authority. As far as academies go it is not quite so clear, particularly if the alleged fraud involves the chair of governors. In that case it goes straight to Michael Gove, the Secretary of State, who has an increasing number of such schools under his direct management.

What happens in the case of the council when the whistle blower is confronted with evidence of a major bust-up between the two most senior people on the council?  It is not fraud or even unlawful but surely it is in the public interest that residents should know about a matter that directly impacts on the efficient running of their public services. Surely council employees have a right to know that their employers are at war with each other?

So someone leaked the e-mails to the press; perhaps a council employee with access to the e-mail accounts of both men, or a councillor with similar access. Either way I imagine they would have to have been quite senior.  It seems unlikely that Butt or Daniel themselves may have done the leaking - but these are the strangest of times. The central question for me is: does this leak constitute a form of whistle blowing? Some might argue it was all just tittle tattle.

If the leaker was an employee, their union representatives may well be able to mount quite a strong case that the leak was in the public interest and so he or she should be protected. 

Policies are derived from the Public Interest Disclosures Act 1998 and this section seems relevant:
Disclosure of exceptionally serious failure.(1)A qualifying disclosure is made in accordance with this section if—
(a)the worker makes the disclosure in good faith,
(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c)he does not make the disclosure for purposes of personal gain,
(d)the relevant failure is of an exceptionally serious nature, and
(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.
The last section looks a little dodgy and comes back to the question of whether there was anyone else, other than the press, to whom a disclosure could have been made. There is also the question of whether the employee is in breach of a duty of confidentiality that forms part of their contract.

From the trade union representative point of view this could be a fascinating case. When I was a Natsopa print union representative at Reuters back in the 1960s I found myself handling some bizarre cases. One involved defending a worker who was found lighting paper in the basement of the Reuters building, apparently to set fire to it, Another was a studious young man fresh from college who took a week's unauthorised leave without contacting the management. On his return they decided to sack him.  It turned out that he had used the time to come up with some ideas for automating the workplace  and reducing the workforce. I found myself negotiating to stop the sacking of a union member who wanted to do us out of our jobs!

On reflection this case may be more straightforward and I wish Unison or any other union involved the best of luck.

(By the way I 'won' both cases with appropriate help for the workers involved)

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