This statement of the University' s 'Public Interest Disclosure Policy and Procedures' describes in Part I the general context of the legislation and associated reports, while Part II describes the steps to be followed by staff in making a public interest disclosure.
1.1 The Public Interest Disclosure Act 1998 is specifically aimed at institutions such as universities. In part, the Act follows from the Nolan and Dearing reports that are directly applicable to higher education.
1.2 The University was established with a commitment to the highest standards of openness, probity and accountability. This commitment is underlined by the University' s key role in maintaining and furthering academic freedom. To support and encourage staff in exercising their moral and legal rights, the University has developed a range of policies and procedures in consultation with the relevant trades unions.
1.3 While, therefore, the University believes that it has already incorporated into normal practice the spirit of the Nolan and Dearing reports on public accountability, this particular policy is designed to complement existing norms and conventions and address the specific requirements of the Public Interest Disclosure Act 1998. Nothing in this statement of policy and procedures shall be taken to distract from existing agreements on collective bargaining with trades unions and/or consultation and/or exchange of information and/or disciplinary and grievance procedures, except where specifically required by the 1998 Act.
2.1 This policy applies to all those 'employed' by the University. The definition of 'employed' is extremely broad and includes those employed on a permanent, fixed-term or casual basis; those on work experience or vocational training schemes, whether paid or unpaid; academic visitors, lay members of the University; agency staff and contractors. Throughout this document, any reference to an "employee" will be deemed to include all those categories of "worker".
2.2 This policy does not apply to students, conference delegates and visitors, unless they are also employees of the University.
3.1 It is an implied term of every contract of employment that staff will serve the University with good faith and fidelity. Usually, that means that a staff member should not disclose confidential information acquired during the course of 'employment' or act in a manner that will undermine the mutual trust and confidence on which the employment relationship is based.
3.2 However, the purpose of the Public Interest Disclosure Act 1998 is to recognise that there are occasions when the good faith and fidelity that generates mutual trust and confidence are undermined by the actions or omissions of the employer.
3.3 If, in accordance with Section 2 above, an 'employee' who has reasonable grounds for believing that either members of staff and/or agents of the University and/or lay members of the Council are acting in a way that appears to be:
the 'employee' is entitled to disclose that information. Such a disclosure will be a qualifying disclosure.
4.1 In such cases as detailed above, an employee can make a qualifying disclosure. If somebody covered by this policy makes a qualifying disclosure , it should be noted that criteria to be met in disclosing information becomes more demanding as one moves from reporting the matter internally to wider public disclosure. There are four categories of qualifying disclosure :
5.1 An employee, acting in good faith and in accordance with the criteria detailed above, who makes a complaint will not suffer any loss, harassment or victimisation, even if it is shown that the complaint was without foundation. In a case where an employee makes a disclosure in good faith who appears to have suffered a consequential loss, detriment, harassment or victimisation, the onus and evidential burden will be placed on the University to show that there is no causal link between the disclosure and subsequent loss or detriment.
In any case where it is alleged that an employee has not acted in good faith, the onus will be on the University to show beyond reasonable doubt that the employee made the complaint in a deliberately malicious and/or recklessly irresponsible manner. If it can be proven that a complaint was made deliberately maliciously or recklessly irresponsibly, this will be deemed prima facie evidence of misconduct and be treated in accordance with the disciplinary procedure.
Part II deals with the procedures to be followed in making an internal disclosure or a wider disclosure , as well as detailed guidance on guarantees on disclosure. This Part II will be amended when the government issues further guidance on the procedures to be followed by the statutory regulators. Given that an " exceptionally serious failure" is so exceptional that the University does not expect any employee to have to make such a disclosure, an employee who did feel that he/she had to make such a disclosure would have to decide the procedure to be followed and accordingly, no detailed advice is given, other than that indicated in 4.1(d) above.
7.1 Because at the core of the University there is commitment to the ethical values that inform Nolan, Dearing and the 'Public Interest Disclosure Act 1998', the University would expect that matters detailed in 3.3 and 3.4 would be dealt with using existing formal and informal mechanisms. If, however, an employee considers those formal and informal procedures inappropriate or unavailing, the employee may make an internal disclosure to the Registrar and Secretary and such a disclosure will be deemed a qualifying disclosure .
7.2 An internal disclosure is one made to the Registrar and Secretary, who has been designated as the University's principal officer in disclosure cases. The procedure to be followed in making an internal disclosure should be:
7.3 The Registrar and Secretary will decide whether to appoint a member of staff to act as the investigating officer. The investigating officer shall investigate the complaint in a fair, effective and robust manner, submitting a written report. The investigating officer will not take part in any of the decision making process associated with the report. The Registrar and Secretary will decide, after appropriate consultation, what action, if any, should be taken, reporting the outcome in writing to the Vice-Chancellor, the complainant, and, if relevant, appropriate committees of the University (e.g. Audit and/or Staff Committees).
7.4 If the Registrar and Secretary decides not to have the qualifying disclosure investigated internally, nor to refer it immediately to an external body (e.g. HEFCE, NAO, HSE, the police, etc) for consideration, the complainant may refer the complaint to the University Examiner.
7.5 If a complaint that is a qualifying disclosure is about, or implicates, the Vice-Chancellor or Registrar and Secretary or another senior member of the University and the person bringing the complaint is concerned that her/his position might be compromised by an internal disclosure, the matter may be reported directly to the University Examiner.
7.6 The University Examiner is appointed by Council, following consultation with the wider University community, including the trades unions. The University Examiner will have a knowledge and expertise of both higher education and ethical systems of large organisations, with a particular awareness of the role of public disclosure in regulating such bodies. Given the nature of public interest disclosure proceedings, it may be desirable that the Examiner is legally qualified.
7.7 The University Examiner will consider cases that:
7.8 The University Examiner may appoint a person to undertake such investigations the University Examiner considers necessary. The person appointed to undertake the investigation may be a member of the University or a person from outside the University. A report of the investigation, which shall be fair, robust and effective, shall be given to the University Examiner, the complainant, the Vice-Chancellor and relevant members of the University, together with the person against whom the complaint is made. The person responsible for the investigation shall take no part in the decision making process associated with the report.
7.9 The University Examiner will be given access to any papers considered by her/him as necessary to consider the complaint. If the complaint has already been the subject of an internal disclosure investigation by a person nominated by the Registrar and Secretary, copies of all papers associated with the case will be submitted to the University Examiner.
7.10 The powers of the University Examiner are:
7.11 If the University Examiner decides that, in the interests of equity, a matter should be subject to review by a tribunal rather than by the University Examiner sitting alone, it will be for Council to appoint two members, one of whom shall be an employee of the University and one a member of Council who is not an employee of the University. Where it is decided to determine a complaint through a tribunal rather than by the University Examiner sitting alone, the tribunal shall be known as a 'Public Interest Disclosure Tribunal'.
7.12 The recommendation(s) and report(s) of the University Examiner and/or Public Interest Disclosure Tribunal will be submitted to the Vice-Chancellor and Registrar and Secretary.
8.1 An employee who, in good faith, concludes that their complaint cannot be dealt with in accordance with the internal disclosure procedures may make a wider disclosure to a responsible body. Usually, a wider disclosure to a responsible body will be because the complaint has already been raised using the internal disclosure procedure, but the complainant considers no action or effective action has been taken to resolve the problem and/or the employee considers that the University will discharge or conceal evidence concerning the complaint and/or the employee considers they will be victimised for bringing a matter in accordance with internal disclosure proceedings.
8.2 In addition to acting in good faith, an employee making a wider disclosure must be able to show that the disclosure was not for personal gain and the information upon which the disclosure was made was believed by the complainant to be substantially true.
8.3 A wider disclosure should be made to a responsible body such as the police, HEFCE, QAA, TTA, MPs, trades unions and professional organisations. So far as is reasonably practicable, an employee in making a wider disclosure should:
8.4 If the employee considers that the University Examiner has, in the procedure detailed in 7.6 - 7.12 above, acted contrary to the standards expected in 3.3 or 3.4 above, the employee may make a wider disclosure against the University Examiner to a responsible body.
9.1 In addition to internal, regulatory and wider disclosures , the 1998 Act allows for disclosure of an exceptionally serious nature. Although the Act does not define "exceptionally serious failure", the case originally made for disclosure in the public interest came from disasters and scandals such as the Pipa Alpha explosion, BCCI collapse, Clapham train crash and the Barlow Clowes fraud. The University has put in place procedures to ensure that such situations should not arise, but if an employee is faced with an exceptionally serious situation which cannot be dealt with in accordance with the disclosure procedure detailed above, the University will treat such a disclosure as protected if it can be proved that the disclosure was made:
10.1 An employee who makes a qualifying disclosure will not be required by the University, without his or her consent, to participate in any enquiry or investigation into the matter established by the University, unless there is prima facie evidence that the employee made the complaint in a deliberately malicious manner, knowing the complaint was without foundation. In such cases, the matter will be dealt with in accordance with the disciplinary procedure.
10.2 With the exception of a case in which there is prima facie evidence of a deliberately malicious complaint knowingly made without foundation, an employee who makes a complaint in good faith will suffer no loss, harassment or victimisation, even if it is shown that the complaint was without foundation. Loss, harassment and victimisation may be direct or indirect. If an employee acting in good faith claims that they have been in any way disadvantaged as a result of making a complaint, the onus will be on the University to show there is no causal link.
10.3 Contractors, agency workers, academic visitors and lay members of the University will, solely for the purposes of the Public Interest Disclosure Policy, be entitled to have recourse to the relevant University Grievance Procedure.
11.1 Except as detailed above (in Section 10), this policy does not apply to any personal or collective grievance about terms and conditions of employment, or other aspects of the working relationship which should be dealt with under existing grievance, harassment and bullying procedures.
12.1 This policy and procedure will be reviewed on an annual basis. The number of cases dealt with under the procedure will be reported to HR Policy Committee and Council as part of Human Resources' Annual Report. Any significant changes to the procedure will be a matter for negotiation with all recognised unions, but minor amendments to improve the operation of the policy and procedure may be agreed following an exchange of correspondence with all recognised unions.