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September 14, 2012 9:38 pm
On a quiet spring evening in 1999, Eileen Chubb walked as casually as she could into the office of Isard House, the care home for the elderly in Bromley, Kent where she had been working for the past three years. Glancing over her shoulder, certain she was going to be caught, she picked a ring-binder folder off a high shelf and emptied it of about 70 sheets of medical records. She handed them to a fellow care worker, who climbed the rarely used back stairs to a photocopier. The machine was so basic it took an excruciating 70 times of opening and closing the lid to copy the evidence they both hoped would make their employer acknowledge the abuse of elderly and vulnerable patients in one of its units. The pair were running out of time. Chubb, who had reported the abusers to social services two weeks earlier, was aware that a manager was en route. Judging by the distance from the manager’s home and the light evening traffic, Chubb knew they had at best 10 minutes.
“I was doing what I thought was right. At the time I didn’t even know what a whistleblower was,” says Chubb. “I got pushed over a line when I saw the shouting and the pushing. We told management and social services and no one made it stop,” she explains, adding that she felt she had a duty to act. Failing to do so when she knew it was happening would make her an accomplice.
“That’s when I thought: if I get the medical records that show Edna – who was in her nineties and a sweet, sweet lady – is being given such high doses of anti-psychotic drugs that she lies comatose with her head on the table, I would be able to make it stop.” But Chubb would learn the hard way what happens to whistleblowers who want to expose a secret that powerful people have an interest in keeping hidden.
There is no good way of getting a divorce, no good way of dying and there’s no good way of whistleblowing. Even in the UK, where whistleblower protection laws are held up as some of the best, a standard for other countries to emulate, whistleblowers often find themselves shunned by their employer, ignored by regulators and let down by a court system that concentrates on their employment experience, rather than on the problems they reveal. And regardless of how legitimate their case, whistleblowers who go public rarely get to work again in the industry they expose. Many lose their wealth, their homes, their families, their reputations and their mental health. Some contemplate suicide.
This is why Chubb has come to London on a late-August morning, more than a decade after she first blew the whistle. She is attending the third meeting of Whistleblowers UK, or WBUK, a nascent charity made up of whistleblowers as diverse as bankers, defence contractors, police detectives, doctors, nurses and care workers.
The law specifically protecting whistleblowers in Britain came into force in 1999 and is integrated into the country’s employment laws. It requires the whistleblower to be acting in the public interest, allows for unlimited compensation and, in theory, voids gagging clauses. But unlike in the US, British law focuses narrowly on the employment status of the whistleblower, not on the whistleblower’s message.
The US still has no general employment protection legislation. But it has a whistleblowers’ ombudsman (appointed last month) and it outlaws victimisation of those who report infringements of particular statutes, including environmental, health and safety measures. Federal laws reward whistleblowers who help the government claw back money lost through fraud, and allow for others to share in fines levied by its regulators.
WBUK is the UK’s first broad-support lobbying group set up by whistleblowers. For anyone who has followed British whistleblowing for the past decade, room AG03 on the ground floor of City University’s College Building in north-east London is filled with an Olympic line-up. Between them, the people founding WBUK have saved lives; stopped abuse; helped to usher in new anti-bribery laws; forced the revamp of hospitals and care homes. More than $500m in fines has resulted from their campaigns.
Ian Foxley, a tall, erudite, former army lieutenant colonel and the emerging group’s chairman, leans back on an aluminium chair. To his left sits Peter Gardiner, a 71-year-old entrepreneur who ran a successful London-based corporate travel business for 21 years. Their shared history as whistleblowers – both raised (separate) allegations of UK defence contractors bribing Saudi officials – has drawn them together as friends and confidants. Rounding out their corner of the conference table is Gavin MacFadyen, director of the UK’s Centre for Investigative Journalism. It was he who suggested to the whistleblowers that they form a group at a seminar he ran last summer.
Beyond them sit about two dozen people whose lives, like those of Foxley and Gardiner, have been transformed because they refused to look the other way. They have come together to create a network to offer advice, legal counsel and psychological care to future whistleblowers, as well as campaign for their shared cause. The anger, hurt and frustration of their debate makes evident that WBUK also serves as a support mechanism for its participants.
Ian Foxley compared the very first meeting of the group, in March 2011, to “the site of a plane crash where the survivors were just getting to grips with their own injuries and those of their fellow passengers”. But today, the room is more like the ward of a hospital, full of “doctors and patients”, as Foxley puts it. Which side you belong to is determined by how far you have progressed along the arc of the life of a whistleblower.
Ian Taplin, the former Lloyds TSB bank executive, is still fighting for recognition of his allegations against the bank. He is a “patient”, still at the beginning of the arc, wrapped up in the injustice of his own case, angrily repeating his point as he leans over the table.
Diagonally across from him sits Martin Woods, whose detective work at US bank Wachovia in 2006 eventually helped expose how Mexican drug cartels laundered millions of dollars through the bank’s accounts.
Woods’ journey started with much the same emotion as Taplin’s. “I think everyone in this room at one time thought about ending it all,” he says. After going to the press and the US financial regulator, which eventually fined Wachovia, Woods’ situation improved. Nevertheless, it took him another three years of being turned away by what seemed to him to be the entire banking industry, before he found a similar job just days before this meeting.
He is one of the “doctors”, as are Foxley, Gardiner, Chubb and a handful of others. Also among them are Kim Holt, the paediatrician who blew the whistle on the chaos and skeletal staffing at the Haringey clinic where Baby Peter Connelly was examined (Baby P was given a clean bill of health two days before dying of injuries inflicted by his mother and her boyfriend); Margaret Haywood, who helped the BBC expose abusive care within the NHS and was subsequently struck off the nursing register; and Vivienne Yarham, whose allegations about unethical behaviour by two police officers ended her 25-year career in the police force.
David Morgan, sitting diagonally opposite Foxley, is a consultant psychotherapist and psychoanalyst who has agreed to help WBUK. He believes that many of us survive by turning a blind eye to transgressions big and small – from the wrong person being promoted for the wrong reasons, to banking executives who launder billions of dollars of drug money. He is intrigued by the psychological burden of whistleblowing and by what society’s often violent reaction to whistleblowers tells us about the health of the system.
“We survive and maintain our own security often by turning a blind eye. A whistleblower for many reasons goes against the flow and does not turn a blind eye,” says Morgan. Whistleblowers sometimes have no idea what they are getting themselves into, he adds, especially regarding the psychological effects of the backlash.
Those whistleblowers who refuse to succumb to pressure when employers attack them with accusations of ineptitude or mental instability; who get over their disbelief when police or regulators fail to take up their cause; and who resist the temptation to make it all go away by accepting settlements with gagging clauses, appear to have one thing in common. They say the internal conflict they would unleash by looking the other way or capitulating, while still believing in the truth of their case, would dwarf any punishment the outside world could administer.
Nevertheless, the punishment can be brutal. Kim Holt, the paediatric consultant, was unable to return to her job for several years after raising her concerns in 2006. “My daughter was being bullied at school. At the same time, she was seeing her mother being bullied to the point where she is becoming ill,” she says. “But I think in a way I am quite cushioned, I have a husband, I have money, I never lost my job and I have sort of been vindicated in the press. Other people never get their careers back. They end up in poverty.”
Peter Gardiner was not as lucky as Holt. In 2004 he turned to the Serious Fraud Office (SFO) after halting his travel agency’s work as a concierge for Saudi officials, whose expenses were being funded by UK defence contractor BAE. Gardiner ended his lucrative contract with BAE because his lawyers had advised him a new UK anti-terrorism law with an anti-bribery clause meant he risked acting illegally by continuing. But after halting the contract and “blowing the whistle” to the SFO, Gardiner went from having “the life of private jets and cars” and a six-bedroom house in St Albans, to losing his home, his business, his art, his pension and his family.
The SFO initially investigated Gardiner himself. “No one wants an individual who is being investigated. I didn’t have any money any more ... ” His marriage broke up. “That was the worst,” he says, so softly that it is difficult to hear him. At around the time the SFO’s investigation into BAE was quashed by then prime minister Tony Blair, citing national interests, Gardiner was struggling to make ends meet. “I started doing cleaning jobs, I worked cleaning churches,” he says, adding that he told himself at the time: “This is the real world, this is what it is all about.” Vindication would take another four years, when the US fined BAE $400m and found the company guilty of lying about its dealings, including those with a Saudi prince.
David Morgan is neither surprised that so many people turn a blind eye to fraud and abuse, nor that corporations and even those in authority fight back – often viciously – against those trying to expose them. He likens the whistleblower to the child in the tale of “The Emperor’s New Clothes”. “It is this kind of seeming authority, like the emperor’s, that blinds us from seeing things as they really are, while also silencing those who see things differently. Fear of ridicule and rejection are powerful disincentives,” says Morgan. “The whistleblower requires guts. He takes a great risk challenging a human desire for certainties in an uncertain world, and therefore has to endure being made to carry all the uncertainties him- or herself, before truth is allowed to come to the fore or not.”
. . .
Within the whistleblower community, there is a lively debate about how Britain’s legislation stacks up against that of the US. In the UK’s favour, its laws cover anyone, regardless of who employs them, and offer a relatively uniform approach. In the US, employees can be treated differently from state to state. In the opinion of many whistleblowers, however, the US is far ahead of the UK because it encourages serious whistleblowers and the lawyers who represent them. Not only is there a whistleblowing ombudsman, but the US’s varying and sometimes overlapping regulators have also shown a greater willingness to pursue companies for alleged wrongdoing.
One of the hottest topics among WBUK members is whether the group should lobby the UK government to follow the US’s lead in granting whistleblowers a share of fines that are levied with their help. The rewards can be substantial. In 2010 Cheryl Eckard, a former quality control manager at GlaxoSmithKline, the British pharmaceuticals group, was awarded $96m of a $750m criminal and civil settlement between US regulators and her former employer, whose executives had ignored and then tried to cover up her warnings of contamination problems at its drug factory in Puerto Rico.This week the US Internal Revenue Service awarded former UBS banker Bradley Birkenfeld $104m for revealing a tax evasion scheme that cost the US government billions of dollars.
Many of the City- and industry-based whistleblowers like the idea of such payments. They reason that it would reward the whistleblower, help under-staffed regulators do their job and generate greater interest in whistleblower cases from UK law firms, which today see little upside. The doctors, nurses and carers are more reticent. “If you bring money into it, you might end up with people saying they are whistleblowers when they are not. The biggest reward for me would have been that we would have improved our service and prevented [the death of] Baby P,” says Holt, adding with irony: “Of course we would never have known that we prevented it.”
But money already plays a big part in whistleblowing, given that the current legal path in the UK usually leads through an employment tribunal where winning or compromising often involves a financial settlement with a non-disclosure clause. Holt says she was first offered £80,000, and, once the Baby P scandal hit, the reward for her silence was raised to £120,000. After discussing it with her family, she turned down both. Almost all the whistleblowers in the room were at some point offered money in return for keeping quiet.
But taking the money can come with serious drawbacks. Paul Moore, who as head of group regulatory risk at Hbos says he warned its board that the company’s “sales culture was significantly out of balance with their systems and controls”, accepted a settlement that included a gagging clause. The decision was far from easy and the aftermath a long way from comforting. “You have to factor in the emotional turmoil that makes it very difficult to discern things in a balanced way. I felt schizophrenic in my soul,” he says, adding that he felt like Judas when he decided to take the settlement after a lengthy battle to be heard. “Everything was gagged. They even gag your wife! You simply cannot believe what state I was in,” he says, describing how he slid women’s pads under his armpits to stop the profuse sweating triggered by stress. “By that stage my drinking had got to the point [where] I could drink a bottle of vodka in under two hours with no trouble at all. Imagine what that did to my family and children. I felt suicidal. I felt useless.”
Eventually, Moore found strength in his faith and sobriety through Alcoholics Anonymous. After watching Lehman Brothers collapse in 2008, he made the decision to break his silence. By then it was too late to save Hbos, but, he says, it allowed him to use his experience to inform the debate on how to avoid another banking crisis.
Moore says he initially settled on the advice of his lawyers, and because, after feeling rebuffed by the Hbos board and ignored by the FSA, he thought his concerns would never be taken seriously. He believes that had the odds not been so strongly stacked against him and others in his position, more people would have come forward, possibly helping to avert the financial crisis.
Every time a whistleblower is ignored or silenced, the odds of someone breaking away from the group and speaking out are diminished, while the hand of those who seek to cover up wrongdoing is strengthened. But the whistleblowers of the past decade are determined to ensure the next generation is better protected by stronger laws and the support of those who have gone before them.
“How do you think you are going to do that? What are the weapons?” asks Foxley, the former lieutenant colonel. “You are in a war for hearts and minds and the soul of the country. And the weapons you use are effectively going to be the media. You have to reassure your supporters, persuade the unpersuaded and deter the ones who would act against you.” Success will come when blowing the whistle on even the most sensitive transgressions becomes less risky than covering them up.
Today the whistleblowers are still hashing out their message. Another major issue yet to be resolved is where to find the money to allow WBUK to graduate from a place whistleblowers can go for a sympathetic chat to one that changes laws. WBUK intends to be part of the debate and some of its members have already been asked to submit evidence to the Parliamentary Commission on Banking Standards.
The group also needs funding to help pay for whistleblowers’ legal and psychological support – and perhaps even the odd mortgage bill. That may not be so easy, because unlike many other charities, WBUK plans not to take donations from government organisations or companies.
“Ideally I’d like to find a really philanthropic billionaire who says. “You know, I like what you are doing. You are a bunch of ballsy, brave people who just won’t lie down,” says Foxley. Some of the group already have some fundraising experience, having started whistleblower charities within their own sector that could eventually come under the umbrella of WBUK. Holt’s Patients First advocates for openness and accountability within the NHS; Moore is in the process of creating City Whistle, which aims to help financial whistleblowers; and Chubb has established Compassion in Care. The former care worker now carries out independent undercover inspections of problematic care homes up and down the country.
Chubb did indeed manage to escape Isard House that evening with the photocopies she had hidden under a batch of towels in the bathroom until her shift was over. She carried the notes with her from an employment tribunal to the high court, where she failed to gain exposure for her cause. It was only after she told her story and went to the press that the alleged abuse at Isard House, and eventually the sorry state of a large portion of the UK’s privatised elder care system, began to come to light.
As Chubb and the others lay the foundations for WBUK, Isard House has since been vacated of its elderly patients and their carers, and is awaiting sale and possible demolition.
Carola Hoyos is the FT’s defence correspondent.
‘Before this happened, I thought I lived in a civilised culture. Now I have no doubt that I do not live in a civilised culture’
Eileen Chubb was working at Isard House, a care home for the elderly, when she noticed signs of abuse. She says she got little help from managers even though she escalated it to more senior executives. She took copied work documents to an employment tribunal and even to the high court, but failed to gain exposure for her cause. It was only when she eventually went to the media that the issue of alleged abuse at Isard House and other homes was brought to light.
‘There is a culture here in England of covering things up that are in the national interest’
In the 1990s BAE had a £60m fund for expenses related to travel, medical care and other activities by Saudi officials. Peter Gardiner’s travel and concierge company took care of the Saudis’ needs and then expensed BAE for the cost. Gardiner handed the SFO many documents that suggested BAE could be bribing Saudi officials, but Tony Blair quashed the investigation in 2006. Gardiner helped the US Department of Justice, which eventually fined BAE $400m after finding it had lied about payments, including those made in regards to Saudi Arabia.
‘In Britain there is still the idea of the whistleblower as the school sneak – and you shouldn’t reward the school sneak you should debag him’
In early 2011 Ian Foxley handed the Serious Fraud Office a huge number of emails suggesting the defence contractor he worked for had made questionable payments of at least £11.5m to Cayman Island bank accounts and bestowed lavish gifts of cars upon Saudi generals. The company, GPT Special Project Management, a subsidiary of pan-European EADS, is now under criminal investigation by the SFO.
‘I have sort of been vindicated. Others never get their careers back.’
In 2006 Kim Holt and three other paediatric consultants warned Great Ormond Street Hospital that chaos and skeletal staffing at its Haringey clinic presented a “very high risk” to patients. Holt says she was bullied and blocked from returning to work after sick leave. When Baby Peter Connelly died just over a year later, the blame seemed to be laid disproportionately on the Haringey locum who examined him, so Holt went to the media. In 2011 Whittington Hospital NHS Trust took over Haringey Children’s Services, and this year Holt was able to return to work, though at a different clinic.
‘I am convinced that we are going to change the legislation and make a better world’
As head of group regulatory risk at Hbos, Paul Moore says he warned the bank’s board and the Financial Services Authority in 2004 that his employer’s sales culture was out of balance with its systems and controls. Moore was fired and won a settlement with a gagging clause after he took his employer to court. He broke his silence in 2008, hoping his story would help inform the debate on how to avoid another financial crisis. Hbos, meanwhile, went to the brink of collapse. “I am absolutely convinced that, not only are we going to change whistleblowing legislation, but we will make a better world,” he says, though after he attended its first meeting, he remains undecided whether he will join WBUK.
‘My bonus for 2008 was that I hung on to my integrity, was keeping my sanity and ... my family together. Three years on I am lucky enough to still be surviving’
It was Martin Woods’ job to find out whether any of Wachovia Bank’s customers were using its accounts to launder illegally made money. And that is exactly what he did in 2006 when he noticed large sums of possible drug money coming into the bank from Mexican money exchanges. When he had no luck raising the issue internally, he took his evidence to US authorities, which in 2010 fined Wachovia $160m.
‘Words can never describe how I was made to feel. Everything changed overnight from being regarded as a first-rate detective to someone they no longer wanted to be associated with’
In 2004 Vivienne Yarham raised allegations that two Suffolk police officers were putting others at risk by acting illegally and unethically. Her complaint was not taken seriously, and she was shunned and ostracised until she eventually resigned, ending a 25-year career in the police force. An employment tribunal upheld her claim for constructive unfair dismissal, awarded her compensation and the constabulary apologised.
‘It broke my heart that the [Brighton hospital] carers were working still and I had my livelihood taken away from me’
Margaret Haywood helped the BBC uncover gross neglect of vulnerable and elderly patients at a Brighton hospital. But when the Panorama programme aired, causing much public outcry, the regulator struck Haywood off the nursing register for violating patient confidentiality. She was reinstated six months later after two public petitions.
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