Whistleblowing Protocol

According to the NIAO ‘The term ‘whistleblowing’ does not exist in law. It is a word that has become commonly associated with the action of raising a concern, usually by an employee or worker, about what they believe is wrongdoing within their organisation.

Raising a concern in the public interest is the action of telling someone in authority, either internally and/ or externally (e.g. regulators or media), about wrongdoing, risk or malpractice’.

The NIAO continued to define this further; ‘There can be confusion around the terms ‘raising a concern’ and ‘whistleblowing’. Some wrongly believe that they are separate steps involving an ‘escalation’, i.e. someone ‘raises a concern’ then, if they feel they have not been heard, they ‘blow the whistle’ within their organisation or to an outside body. This is a misunderstanding. Whistleblowing and raising a concern are the same thing.

The nature of the issue being raised will determine whether it is a concern (whistleblowing), a grievance or a complaint, and therefore the appropriate policy under which it should be addressed’.

There are many possible ways and routes for EA to receive a potential whistle blowing allegation. They can be sent by letter, email or by phone call. They can and do arrive via a variety of routes including via DE, the NIAO, the EA Complaints Team, The Chief Executive’s Office and by contacting any of the named officers within the EA policy. They can be anonymous or by named individuals, who may wish for their identity to be protected. Equally they can be by individuals who are happy that their identity is revealed. Individuals who wish for their identities to be protected are entitled to anonymity under the legislation and to protection from any detriment as a consequence of their having raised a concern. It is an offence to cause detriment to a whistle blower as a consequence of them having raised a concern. No attempt must be made to identify an anonymous whistle blower or one who requests that their identity is protected.

Every potential whistle blowing allegation is initially routed to the Head of Internal Audit and Assurance -HIAA* (*or in his/her absence an agreed senior member of EA’s Audit Service) who will determine if it should be considered as a whistle blowing allegation and dealt with under the EA Raising Concerns at Work Policy. This is not always a straightforward decision.

‘There can be instances where a person raises an issue which has elements both of a wider concern affecting others and of personal interest. The challenge for organisations is to disentangle the issues and deal with each in accordance with the relevant policy’ NIAO Raising Concerns – A good practice guide for Northern Ireland Public Sector - June 2020.

Therefore, Judgement is required as to the most appropriate process under which to progress the consideration of the allegations. Some allegations are actually complaints which are better dealt with under the EA complaints policy. Others are complaints against the actions taken within a school which may be more appropriately dealt with under the school’s complaints policy. The HIAA* will provide advice on the most appropriate process to deal with the allegations. They may be referred at this stage to the Board of Governors at the school in question or be registered and allocated for investigation as part of the EA Complaints Process.

The HIAA may delegate this oversight role to a Senior Officer of the Audit Team, based on the complexity of the case, in that instance the Senior Audit Officer will report to the HIAA.  

Sometimes the exact nature of the allegations is unclear. Provided the whistle blowing has provided contact details, then the HIAA* will acknowledge receipt and inform them that their allegations will be investigated under the EA Raising Concerns at Work policy. They may also if required request additional information/clarity. This can include the offer of a meeting, but this is also a matter for judgement by the HIAA as to whether this is appropriate or necessary.

The HIAA* will request from EA IT that a new confidential share-point site is opened. This is done via email providing the name of the file site (without providing specific details such as the name of any school or individual) along with a request that access to the share-point site is restricted to the HIAA only. EA IT will register the site on share-point and notify the HIAA* of the next reference number in sequence. The HIAA* will record the case details on a spreadsheet database register. This will record summary details of the allegation only as well as how the allegation will be investigated and who it has been referred to for investigation.

It is essential that a clear process is in place for the management of whistleblowing cases. This provides officers with a guide to the steps and actions required to successfully manage whistle blowing. EA operates a 2 stage process for the management of whistle blowing cases outlined below;  

Stage One Investigation

• If the whistle blowing is in relation to a dissatisfaction with an EA Employee, Service and delivery of duty then this should be manged by the Directorate in which the concerns are directed.
•  The Head of Audit (*or in his/her absence an agreed senior member of EA’s Audit Service) should be informed and will provide advice on management of whistleblowing
• Investigation officers should report to the Head of Internal Audit*.
• Where a whistleblowing case refers to financial misconduct and/or is about a Director/CEO this will be investigated by Internal Audit. If the case is in relation to a Director, the HIAA will report to the CEO. If the case is in relation to the CEO, the HIAA will report to the Chair of the EA Board.
• Where a whistleblowing case refers to the EA Board Chairperson, this will be referred to DENI

Stage Two Review

• If the whistleblower is dissatisfied with the outcome of stage 1
• The stage 1 investigation should be fully reviewed by a Partner Directorate
• Officers reviewing stage 1 should report to the Head of Internal Audit
• Stage 2 review, is a review of the process only and is designed to provide further assurance that the stage 1 investigation followed the protocol guidance.
• Where a whistleblowing case refers to financial misconduct and/or is about a Director/CEO this will be investigated by Internal Audit. If the case is in relation to a Director, the HIAA will report to the CEO. If the case is in relation to the CEO, the HIAA* will report to the Chair of the EA Board.
• Where the process is found not to have been implemented in line with the protocol, this may lead to reinvestigation at stage 1. 

An investigation is required when concerns are raised in line with the EA whistleblowing Policy and the HIAA* has assured themself that the whistleblowing procedure is the correct procedure to address the matter. All considerations must be given to the appropriateness of the application of the procedure.

An investigation under the whistleblowing protocol is not required when there is a more appropriate procedure for example if a complaint is made, this should be managed under EA’s complaints procedure, if a staff member is unhappy about working conditions this should be managed under EA Grievance Procedure and if an allegation in relation to the safety of children and/or young people, this should be managed under Child Protection Policy and Protocol.

An investigation is not required when the person or correspondence is deemed to be vexatious in line with the EA procedure.  

The HIAA* will determine how the allegation should be investigated and who is best placed to conduct / oversee that investigation. Sometimes it will be appropriate for the allegation to be fully independently investigated by the EA Internal Audit team, particularly where there is any allegation of fraud or misuse of public money involved. Sometimes it is more appropriate for the cases to be allocated and investigated by operational managers depending on the subject of the allegations. Examples of this can include HR and Recruitment allegations which may be referred to an appropriate individual within the HRLS Directorate etc. This is a matter for experience and judgement. Internal Audit may offer to advise and assist operational management in progressing the investigation. The below diagram illustrates the involvement and role of officers when investigating whistleblowing. Please note that further delegation is permitted upon approval from the HIAA* and AD responsible, to a relevant member of staff who is best placed to undertake the investigation.  

This should be done as expeditiously as possible with priority given to conducting the investigation. All appropriate sources of evidence should be reviewed and any determination of the accuracy of the allegations must be based on consideration of the facts and supporting evidence. The outcome of the investigation should be notified to the HIAA* who will record the outcome and update the whistle blowing register. Where the whistle blower’s contact details are known, then the HIAA* will contact the whistle blower by the most appropriate means and advise them of the outcome of the EA investigation into their concerns. For cases that were notified to EA via DE, then the HIAA* will copy the Chief Executives Private Office into a response to DE to notify them of the outcome. It is normal practice for DE to withhold the identity of a whistle blower who has contacted them, and so DE will be responsible in such cases for notifying the whistle blower of the outcome. In rare cases, the allegations may be deemed to be malicious – that is deliberately and knowingly false. This is distinct from them simply being wrong but made in good faith. In such cases, proving that the allegations were malicious is very difficult, but consideration may be given to disciplinary action or reporting to the PSNI if there is clear evidence of malicious intent and the identity of the whistle blower is known.

Whistle blowing investigation reports are considered to be confidential by default. They often contain details of evidence sources and witnesses who were interviewed as part of the investigation. Data Protection considerations are paramount along with the need to preserve the integrity of the investigation process. For these reasons, investigation reports are not shared or provided to the whistle blower. FOI requests to release such reports have consistently been refused and there are a number of standard exemptions that are applied in such cases by the EA FOI team.

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