Number: C3015 Date Published: 19 April 2016 Version 3 – April 2016
1.0 Summary of Changes
This procedure has undergone a review with reference to the newly published College of Policing, Reporting Concerns (which awaits royal assent). New section 3.4 has been added to explain settlement agreements.
For the purpose of this procedure ‘staff member’ refers to police officers, police staff and other persons contracted or working for Essex Police.
2.0 What this Procedure is about
Essex Police has developed this procedure to outline what constitutes a ‘protected disclosure’ and to inform the handling of ‘qualifying disclosures’. It encompasses the protection afforded to staff under Part IVA Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998), relating to protected disclosures.
Any officer or member of staff can make a qualifying disclosure about any corruption or wrongdoing of any kind within the organisation.
This procedure encourages staff and officers to report wrongdoing, suspected wrongdoing or unethical behaviour with confidence that any such report will be taken seriously and dealt with appropriately.
This procedure will not apply to all instances of police staff or officers reporting matters to their managers or the Professional Standards Department.
Legislation, policy and procedure already exists which provides a framework for how misconduct and command and control matters might be reported and progressed. This procedure will explain what is a qualifying and protected disclosure.
Compliance with this procedure and any governing policy is mandatory.
3.0 Detail the Procedure
3.1 Qualifying Disclosure
These are disclosures of information which the disclosing staff member reasonably believes tends to show one or more of the following is either taking place, has taken place, or is likely to occur in the future:
A breach of a legal obligation;
A miscarriage of justice;
A danger to the health or safety of any individual;
Damage to the environment, or
Deliberate concealing information relating to any of the above.
Any staff member who makes a disclosure must have a reasonable belief that the information disclosed tends to show one or more of the offences or breaches listed above. This belief need not be correct; it is immaterial whether the relevant failure occurred, occurs or would occur.
3.2 Protected Disclosures
A qualifying disclosure will become a protected disclosure where certain criteria are met. These are outlined below and taken from Part IVA Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998) .
A member of staff who makes a protected disclosure is protected from suffering a detriment, including victimisation by colleagues or agents of the organisation, as a result of having made the disclosure.
A member of staff who is concerned about malpractice or unethical behaviour is encouraged to raise these first through internal mechanisms wherever possible.
It is also possible for a member of staff to make disclosures to a person or body which has been prescribed by the Secretary of State or other external person for the purpose of receiving disclosures about the matters concerned. If a member of staff makes a ‘qualifying disclosure’ to such persons, it will be a protected disclosure provided the staff member:
Makes a disclosure of information i.e. one of facts;
It is a qualifying disclosure i.e. one that they reasonably believe that the information and any allegation it contains are substantially true, the disclosure is made in the public interest and tends to show that one of more of the six “relevant features” as contained in paragraph 3.1 had occurred or is likely to occur; and
It must be made in accordance with one of the specified methods of disclosure; as described under paragraph 3.3.
3.3 Qualifying Methods of Disclosure/Reporting
3.3.1 To Essex Police via Internal Procedures
A qualifying disclosure will be a protected disclosure where it is made to one of the prescribed persons who act on behalf of the Chief Constable:
Head of PSD
22.214.171.124 The only additional requirement on the staff member is that they should act in the public interest. No other requirement is necessary to qualify for protection. Disclosure within Essex Police will, in most cases, ensure that concerns are dealt with quickly and by the person who is well placed to resolve the problem.
Appendix A details the process for individuals wishing to make a qualifying disclosure within Essex Police.
3.3.2 To another Person whom the Staff Member Reasonably believes to be solely or Mainly Responsible for the Relevant Failure
For example, a nurse employed by an agency in a council run care home, raises a concern about malpractice with the council. It would also protect a worker in an auditing firm who raises a concern with the client or someone who works for a local authority highway contractor raising a concern with the local authority that the performance of the contract exposes the authority to negligence claims from injured pedestrians.
3.3.3 To a Prescribed Person
Where a disclosure is made to an external body the individual making that disclosure must reasonably believe that the matter falls within the description of matters for which the person or body has been prescribed. For example, breaches of health and safety regulations can be brought to the attention of the Health and Safety Executive or appropriate local authority. Environmental dangers might properly be notified to the Environment Agency.
The only additional requirement on the staff member is that they should act in the public interest. No other requirement is necessary to qualify for protection.
The Independent Police Complaints Commission cannot investigate a matter without a referral from the force in question so any referral to them will not be investigated without prior contact with the force.
Other “prescribed persons” include, but are not limited to the Criminal Cases Review Commission, The Financial Conduct Authority, Health and Safety Executive. The Office of the Police and Crime Commissioner and a number of others listed in Schedule 1, Public Interest Disclosure (Prescribed Persons) Order 1999.
3.3.4 To a Legal Adviser
A qualifying disclosure will be a protected disclosure if it is made to a legal adviser in the course of obtaining legal advice. There are no further conditions attached.
3.3.5 In Other Cases
There are a range of other external persons or organisations to whom a qualifying disclosure can be made, including but not limited to Members of Parliament, professional bodies and non-prescribed regulators.
Where a disclosure is made in accordance with 3.3.3 or 3.3.4 there are additional requirements placed on the individual:
That the disclosure is not made for personal gain; and
In all the circumstances of the case it must be reasonable to make the disclosure; and
One of the following three conditions must also have been met:
At the time of the disclosure the individual reasonably believes he or she will be subject to a detriment by raising the matter internally;
Where there is no prescribed person under 3.3.3, the individual reasonably believes that it is likely that an internal disclosure will result in the concealment or destruction of evidence;
The individual has previously made a disclosure of substantially the same information either internally or to another of the prescribed persons under 3.3.3.
3.4 Settlement Agreements
The following is an excerpt from the Advice, Conciliation and Arbitration Service (ACAS) Guidance:
“Problems in the workplace are usually best resolved in open conversations, including, as appropriate, through the use of performance management, informal and formal disciplinary or grievance procedures, workplace mediation or ACAS conciliation.
However, settlement agreements are also a tool that can be used to deal with workplace problems. Most commonly they are used to help end an employment relationship in a mutually acceptable way.
Settlement agreements often contain clauses relating to confidentiality whereby the parties agree to keep the agreement itself confidential and not disclose its details to third parties (usually with limited exceptions such as close family members and professional advisers, or an exception that makes it clear that the parties can disclose details where they are required to do so by law). Such confidentiality clauses are voluntary and are a matter for the parties to agree during the course of the settlement discussions.
It is important to note that any part of the agreement which is aimed at keeping the agreement confidential will not prevent the individual from making a protected disclosure under whistleblowing legislation, as any provision which attempts to prevent protected disclosures is unenforceable.
Further information on settlement agreements can be obtained from the ACAS website
4.0 Equality Impact Assessment
This procedure has been assessed with regard to its relevance to race and diversity equality. As a result of this assessment the procedure has been graded as having a low potential impact.
5.0 Risk Assessment
There is no specific risk assessment or health and safety consideration considered relevant to the content of this procedure.
Officers and members of police staff engaged within the process must remain aware that they must follow the procedure correctly otherwise the risk to the organisation of a possible employment tribunal could be raised. A failure to fully adopt the principles set out in this procedure could have a detrimental effect upon the reputation of the organisation. Decision making will follow guidance as provided by the National Decision Making Model (NDM) and due regard will be given to the principles and standards contained in the Policing - Code of Ethics.
The following were invited to provide feedback in the consultation phase during the formulation of this document:
7.0 Monitoring and Review
The application of this procedure will be monitored by the Head of Professional Standards. The procedure will be reviewed every 2 years.
8.0 Governing force policy Related force policies or related procedures (Essex) / linked standard operating procedures (Kent)
C 3000 Policy – Professional Standards
C 3001 Procedure – Dealing with Complaints against the Police
C 3002 Procedure – Counter Corruption
L 01200 Protocol – Police Staff Discipline
9.0 Other source documents, e.g. legislation, Authorised Professional Practice (APP), Force forms, partnership agreements (if applicable)
Employment Rights Act 1996
Public Interest Disclosure Act 1998
British Standards PAS 1998:2008 Whistleblowing Arrangements Code of Practice