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Whistleblowers information

Date released
7 September 2020
Request number
202008027
Release of information under
Freedom of Information Act 2000

Information requested

I set out below requests for information under the Freedom of Information Act 2000/Freedom of Information (Scotland) Act 2002:

  1. Does your Organisation take action to protect external whistleblowers from unjustified treatment by their employers or others?
  2. Does any protection against unjustified treatment provided by your organisation extend to persons reporting on behalf of external whistleblowers?
  3. Does any protection extend to proposed or intended unjustified action against an external whistleblower contemplated by his/her employer or another in respect of the disclosure?
  4. Does your organisation offer any reward or bounty for information received from an external whistleblower in respect of information about which you are the prescribed body or person?
  5. Does your organisation publish for the public a step by step guide on how it follows up on external whistleblower information?
  6. Where your organisation does not feel itself to be legally competent to engage with a disclosure made by an external whistleblower, do you have a policy and process to refer that disclosure to another prescribed body/person/regulator or other agency better placed to deal with it?
  7. Where in the circumstances described in Q6 above, your organisation passes information to another prescribed body etc., do you have a policy and process to advise the external whistleblower that the disclosure has been passed to another body etc?
  8. Where an external whistleblower may be dissatisfied with his/her dealings with your organisation, is there an appeals policy and process which engage someone who is independent of the investigating department?
  9. Does your organisation publish FAQ to advise and assist external whistleblowers considering making a disclosure to you?
  10. Does all your staff which communicates with or otherwise manages external whistleblowers receive specialist and on-going training for that
  11. Where, following a disclosure to your organisation by an external whistleblower about a matter for which you are prescribed, an alleged act of retaliation occurs against the external whistleblower by the employer or another person, does your organisation investigate the alleged act of retaliation?
  12. Please describe what criteria you consider in deciding whether to investigate information received from an external whistleblower about a matter in respect of which you are prescribed?
  13. Does your organisation distinguish between public complaints and disclosures from external whistleblowers?
  14. Apart from any information on your website, does your organisation undertake any public awareness programme(s) regarding whistleblowing?
  15. In respect of Article 5(c)(ii), Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, please disclose any and all reports (suitably redacted, where appropriate) which describe how disclosures from workers in other organisations (not your Organisation) have impacted on your Organisation’s ability to perform its functions and meet its objectives during the reporting periods 2017 – 18, 2018 – 19, 2019 – 20.

Information released

We aim to be as open as possible when answering requests for information. However, we consider questions 1 to 14 of your request are general enquiries about our work, and are not requests for information we hold under the FOIA. We have processed question 15 as an FOI request.

This is because Section 84 of the FOIA defines information as “information recorded in any form”. Nevertheless, to be helpful as possible and in accordance with our duty to provide advice and assistance under section 16 of the FOIA, we have answered your questions in this response where we have been able to. We have therefore set out our responses to each of your questions in turn below.

Please note that ONR is the independent regulator of nuclear safety and security at nuclear licensed sites in the UK. We also regulate transport and ensure that safeguards obligations for the UK are met. Some of your questions regarding third parties and whistleblowing are therefore outside our regulatory remit, and any actions taken by third parties should be directed to the appropriate tribunal or court process.

1. Does your Organisation take action to protect external whistleblowers from unjustified treatment by their employers or others?

ONR takes every reasonable step to protect the anonymity of whistleblowers. Individuals can take a case to an employment tribunal if they are treated unfairly for blowing the whistle.

As per government guidance:
“The prescribed person is not responsible for deciding whether the individual who has made the disclosure qualifies for protection. Ultimately this will be decided by the Employment Tribunal where a claim of detriment or dismissal because of whistleblowing is contested. The prescribed person is unable to become involved in a grievance between workers and employers, other than to confirm that a disclosure was made.”

2. Does any protection against unjustified treatment provided by your organisation extend to persons reporting on behalf of external whistleblowers?

ONR takes every reasonable step to protect the anonymity of whistleblowers or other individuals reporting concerns to us. Individuals can take a case to an employment tribunal if they are treated unfairly for blowing the whistle.

As per government guidance:
“The prescribed person is not responsible for deciding whether the individual who has made the disclosure qualifies for protection. Ultimately this will be decided by the Employment Tribunal where a claim of detriment or dismissal because of whistleblowing is contested. The prescribed person is unable to become involved in a grievance between workers and employers, other than to confirm that a disclosure was made.”

3. Does any protection extend to proposed or intended unjustified action against an external whistleblower contemplated by his/her employer or another in respect of the disclosure?

Individuals can take a case to an employment tribunal if they are treated unfairly for blowing the whistle.

As per government guidance:

“The prescribed person is not responsible for deciding whether the individual who has made the disclosure qualifies for protection. Ultimately this will be decided by the Employment Tribunal where a claim of detriment or dismissal because of whistleblowing is contested. The prescribed person is unable to become involved in a grievance between workers and employers, other than to confirm that a disclosure was made.”

4. Does your organisation offer any reward or bounty for information received from an external whistleblower in respect of information about which you are the prescribed body or person?

No, we do not offer any reward or bounty for information.

5. Does your organisation publish for the public a step by step guide on how it follows up on external whistleblower information?

We have guidance for making a protected disclosure available on our website although this is not in a step by step format. We will shortly be publishing updated guidance on our whistleblowing process.

6. Where your organisation does not feel itself to be legally competent to engage with a disclosure made by an external whistleblower, do you have a policy and process to refer that disclosure to another prescribed body/person/regulator or other agency better placed to deal with it?

We will advise the whistleblower if the matter is not for ONR and advise, where possible, whom the matter should be directed to.

7. Where in the circumstances described in Q6 above, your organisation passes information to another prescribed body etc., do you have a policy and process to advise the external whistleblower that the disclosure has been passed to another body etc?

We would not pass any information to another body without the whistleblower’s explicit consent.

8. Where an external whistleblower may be dissatisfied with his/her dealings with your organisation, is there an appeals policy and process which engage someone who is independent of the investigating department?

Yes. If a whistleblower is unhappy with how ONR has handled the case, they can appeal to the Chair of our Audit and Risk Assurance Committee (ARAC), who is a Non-Executive Director of the ONR Board, and independent from the investigation. (a NED).

9. Does your organisation publish FAQ to advise and assist external whistleblowers considering making a disclosure to you?

We have guidance for making a protected disclosure available on our website. We will shortly be publishing updated guidance on our whistleblowing process.

10. Does all your staff which communicates with or otherwise manages external whistleblowers receive specialist and on-going training for that purpose?

Our staff receive in-house support to handle protected disclosures.

11. Where, following a disclosure to your organisation by an external whistleblower about a matter for which you are prescribed, an alleged act of retaliation occurs against the external whistleblower by the employer or another person, does your organisation investigate the alleged act of retaliation?

ONR’s role as a prescribed body is to consider the whistleblower’s allegations and decide if any action is required, providing the issues fall within our regulatory remit (the non-compliance must be under matters that ONR regulates, in accordance with the Energy Act 2013; Part 3). Individuals can take a case to an employment tribunal if they are treated unfairly for blowing the whistle.

As per government guidance:
“The prescribed person is not responsible for deciding whether the individual who has made the disclosure qualifies for protection. Ultimately this will be decided by the Employment Tribunal where a claim of detriment or dismissal because of whistleblowing is contested. The prescribed person is unable to become involved in a grievance between workers and employers, other than to confirm that a disclosure was made.”

12. Please describe what criteria you consider in deciding whether to investigate information received from an external whistleblower about a matter in respect of which you are prescribed?

As per government guidelines:
“In so far as their statutory functions beyond the whistleblowing legislation permit, prescribed persons can look into a disclosure and recommend how an employer could rectify the problems it finds, either in relation to the employer’s whistleblowing policies and procedures or in relation to the issues which form the substance of the whistleblowing disclosure. Some prescribed persons may be able to take enforcement action should they find evidence of wrongdoing in relation to their statutory powers.”

When a safety or security risk arises, ONR inspectors take a measured approach and utilise a variety of regulatory tools to deal with it and ensure compliance with the law. Depending on the circumstances, this ranges from influencing, to regulatory advice, and enforcement (up to prosecution, where circumstances warrant it). We must be proportionate in dealing with gaps and securing compliance, be consistent in our approach, and target the most serious risks or those least well-controlled.

Although we consider all reported events, formal investigation is not always the chosen route, as we may use other regulatory tools to address matters. We may carry out preliminary enquiries as part of our investigation process and the outcome of these may or may not be to progress to an investigation.

ONR inspectors work in line with our published enforcement policy statement (see page 10) in order to determine whether an investigation is required:

“ONR will use discretion in deciding whether incidents, possible breaches of legislation or complaints should be investigated (…). ONR recognises that it is neither possible nor necessary for the purposes of the relevant legislation to investigate all issues of non-compliance with the law that are identified during the course of inspections or in the investigation of reported events.”

The statement, which has been endorsed by the International Atomic Energy Agency’s peer review of ONR in October 2019, also outlines the factors we take into account in determining which matters are investigated.

13. Does your organisation distinguish between public complaints and disclosures from external whistleblowers?

Yes. In accordance with guidance available on GOV.UK, we handle an external report as a protected disclosure if the individual is a worker and reports certain types of wrongdoing, and the wrongdoing is in the public interest (i.e. it must affect others, for example the general public).

We handle all other reports from members of the public as concerns. There is no discernable difference in how we handle these. However we only report on protected disclosures (not concerns) in our Annual Report and Accounts (ARA), as per government guidelines.

14. Apart from any information on your website, does your organisation undertake any public awareness programme(s) regarding whistleblowing?

No, we do not undertake any public awareness programme(s) regarding whistleblowing beyond publication of guidance on our website.

15. In respect of Article 5(c)(ii), Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, please disclose any and all reports (suitably redacted, where appropriate) which describe how disclosures from workers in other organisations (not your Organisation) have impacted on your Organisation’s ability to perform its functions and meet its objectives during the reporting periods 2017 – 18, 2018 – 19, 2019 – 20.

We confirm that under Section 1 of the FOIA, that we do not hold the information in your request. There are no such reports that have impacted on ONR’s ability to perform our functions and meet our objectives during the reporting periods 2017 – 18, 2018 – 19, 2019 – 20.”

However, in respect of Reg 5(c)(ii) of The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 in “how workers’ disclosure have impacted on [ONR’s] ability to perform its functions and meet its objectives during the reporting period”, we confirm that this information is already available in our Annual Reports and Accounts (ARAs) which are laid in Parliament and published on our website.

As our ARAs are in the public domain, your request therefore falls within Section 21 of the FOIA: information reasonably accessible to the applicant by other means (ICO Guidance). This is an absolute exemption and so does not require the public interest test.

The relevant ARAs contain the records for the reporting years in your request:

Our ARA for the 2019/20 reporting year is due to be published at the end of September. We have provided the information relating to whistleblowing below as appears in the final text:

“Whistleblowing

Internal

No internal cases were raised.

External

We received 12 new cases in relation to sites we regulate and other dutyholder activity across our divisions, with none carried forward from 2018/19. We have closed six cases to date and will carry forward the remaining six to 2020/21. Enquiries are ongoing in four of the six cases and we expect the further two to close during Quarter 1 in 2020/21.

Some of the cases have led to actions and recommendations that will be embedded into our routine regulation and have enabled discussions with licensees.”

These reports meet our reporting obligations under Regulation 5 of The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017, in as far as we are able to report in order to protect the confidentiality and identity of whistleblowers.

Exemptions applied

N/A

PIT (Public Interest Test) if applicable

N/A