Agenda item

That the policy be re-drafted to reflect the comments made and submitted to a future meeting of the Committee.

The Internal Audit Manager presented the updated Whistleblowing Policy for review and approval by the Committee prior to submission to the Constitution Committee later in the day.  He explained the need to update the policy in line with changes to the Enterprise and Regulatory Reform Act (June 2013) as referred to in the report.

In response to a query from the Chair, the Head of Legal & Democratic Services said that the previous requirement was that employees made disclosures in good faith about their intentions and must not be motivated by malice.  The change that disclosures must be reasonably believed to be in the public interest added an extra dimension.

The Chair felt that Members should be included on the list of individuals within the policy to whom an employee could raise any concerns.  The Democracy & Governance Manager explained that there was a set procedure for Members who wished to raise concerns.  The Head of Legal & Democratic Services said that Members were able to pass on any issues to the four named officers who were solely responsible for carrying out investigations on behalf of the Council.  Following a request by the Chair for this to be incorporated in the policy, the Democracy & Governance Manager said that this would be brought to the attention of the Constitution Committee.

Ms. Amanda Hughes of the Wales Audit Office (WAO) referred to the section of the policy relating to independent advice and external contacts in which it was stated that the Auditor General for Wales was able to receive whistleblowing disclosures directly from employees.  She explained that the Auditor General was a prescribed person, along with others, within the Act and that in encouraging employees to use the policy, they should be aware of their rights under the Act and a full list of prescribed persons, or link to where this was available should be included in the policy.  In relation to the change that individuals who made a disclosure must believe their concerns to be true and in the public interest, there was caselaw which reflected the need to avoid individuals undertaking their own investigative work.  The reason for the inclusion of criteria 'in the public interest' was as a result of cases in the banking industry where the Act was used to bring to light some issues of personal interest.

Mr. John Herniman of WAO felt that there were some inconsistencies in the policy such as the section on ‘definition’ which indicated the requirement for concerns to be raised internally.  Whilst employees should be encouraged to use the internal process, disclosures could also be made to those defined by the Act as ‘Prescribed Persons’ and individuals could also make a wider disclosure to the press, media or to an MP which should be made clear in the policy.  On the section entitled ‘Protection’, he felt it should be clarified that an individual was afforded the same level of protection, whether they raised their concerns internally or externally, as long as the individual raising the concern could demonstrate that they believed their concerns to be true and in the public interest and that if they went externally in the first instance, they could demonstrate that this was reasonable in the circumstances.

The Head of Legal & Democratic Services said that the points raised were valid and would be conveyed to the Constitution Committee.  With the agreement of the Chairs of both Committees, the comments could be incorporated in the policy, or alternatively the item could be deferred to a future date to allow a re-draft.  Following a suggestion by the Internal Audit Manager that the policy be re-drafted, this was endorsed by the Chair and supported by the Committee.

Councillor Glyn Banks asked what protection was in place to any individual of whom a malicious allegation had been made.  The Democracy & Governance Manager said that the protection only applied to employees who raised concerns which they reasonably believed to be in the public interest.  The Head of Legal & Democratic Services added that if this was the case then no action would be taken, however only in limited circumstances where there was clear evidence of malice, the Council as the employer would need to take necessary disciplinary action.

RESOLVED:

That the policy be re-drafted to reflect the comments made and submitted to a future meeting of the Committee.