How fighting an employer or becoming a whistleblower can lead to retaliation and undermining tactics

 Alicia Clegg in The FT

Caroline Barlow felt little emotion when she settled with the BBC last May and withdrew her employment tribunal claims over unequal pay and constructive dismissal. Just a crushing tiredness that left her shaky and sick and so disoriented that for a while she stopped driving. 

She now views her reaction as a kind of grieving, for her job and faith in an institution that she had revered. She entered the BBC’s pay review process suspecting that she was paid less than male heads of product doing jobs similar to her own, and received a 25 per cent rise, though with little explanation of how the figure was arrived at. So she used data protection law to view internal documents that indicated that even after the increase she would still be paid less. The assessors argued, without providing evidence, that she had skills she still needed to develop and the men had bigger roles. 

“Publicly the BBC was saying it had introduced a transparent process. Yet, it was made very clear to me that I’d only get salary information on my peers at a final tribunal hearing by court order,” she says. 

Like the journalist Carrie Gracie, who also challenged unequal pay at the BBC, Ms Barlow talks of her sense of entering a no-man’s-land of stonewalling and doublespeak, where evidence that she presented was watered down or selectively reported. She says that a strategic project described as “transforming” in a business case, for which she obtained executive committee sign-off, was trivialised as “a hygiene project” after she questioned her pay. She felt blocked by the slow progress of her grievance — she only received the outcome on her final day of employment − undermined in numerous small ways and made to feel unimportant. She became ill and was diagnosed with depression. 

Lawrence Davies, director of Equal Justice Solicitors, who acted for Ms Barlow, says such experiences are common. Most employers try to quash internal complaints to avoid exposing themselves legally, should the employee sue. Yet while employers uphold only 1 per cent of grievances, he says, 65-70 per cent of complainants who persevere to an employment tribunal ultimately win, though the strain can be immense. 

Kathy Ahern, a retired mental health nurse and academic, studied the psychological toll of challenging an employer after discovering that nurses who reported misconduct had strong beliefs about what it means to be a nurse. When they faced reprisals for putting patients before other loyalties they suffered overwhelming mental distress, not just because of what was done, but because the institutional reality gave the lie to everything that nursing codes of conduct teach. Another study, published in the journal Psychological Reports in 2019, found levels of anxiety and depression among whistleblowers are similar to those of cancer patients. 

Ms Ahern likens retaliatory employers to domestic abusers who psychologically manipulate or “gaslight” a partner to destroy their self-confidence and credibility. Tell-tale patterns, which she documents in a review paper published in the Journal of Perinatal & Neonatal Nursing in 2018, run the gamut from maliciously finding fault, to sustained campaigns of petty slights and obstructions, to seeding rumours that the victim is unhinged. 

Tom Mueller, author of Crisis of Conscience: Whistleblowing in an Age of Fraud, believes that while employers sometimes label whistleblowers as “crazy” simply to tarnish them, this may actually be how they see them. To “more negotiable” colleagues who know when to bend with the wind, they may come across as “unreasonable sticklers”, and end up friendless and questioning their own sanity. 

Margaret Oliver, a former detective with Greater Manchester Police, says that senior officers dismissed her as “unreasonable” and “too emotionally involved” when she voiced concerns about the conduct of two investigations into child sexual exploitation, Operation Augusta (2004-2005) and Operation Span (2010-2012). 

After returning from sick-leave, brought on by stress, she spotted an article in the staff newspaper in which GMP’s then chief constable urged officers to challenge police policies that their gut told them was wrong. She “took the scary step” of contacting him directly. But instead of meeting her, as she had suggested, she says he replied with a “bland email” promising that her concerns would be reviewed and passing her back down the command chain. 

Having got nowhere, she resigned in 2012 and went public with her allegations, prompting the Mayor of Greater Manchester to commission an independent review. In January this year phase one, covering the period to 2005, concluded that Operation Augusta, had, as she always alleged, been closed down prematurely and children at risk of sexual exploitation had been failed. Ms Oliver recently launched the Maggie Oliver Foundation to support abuse survivors, and also whistleblowers who, like her, have nowhere to turn. “I asked myself: ‘Is there something obvious to others that I’m not seeing? Or is what I’m seeing wrong and making me ill?’ I felt isolated,” she says. 

Isolation dogged whistleblower Aaron Westrick throughout a 14-year US legal battle concerning alleged corruption in the body armour industry that concluded, in 2018, with all the defendants ultimately making settlement payments. 

As research director at Second Chance Body Armor (since liquidated), Mr Westrick urged his employer to recall a line of defective bulletproof vests containing Zylon, a material manufactured by Japanese company Toyobo. Instead he says that he was frozen out, told by an HR officer accompanied by his employer’s attorney that he was “crazy,” sacked and maligned. “If there’s one word that describes being a whistleblower, it’s loneliness,” he says. “Even your friends don’t really get it.” 

Georgina Halford-Hall, chief executive of WhistleblowersUK, says the stress of fighting a bad employer is all-consuming. But, however difficult, it is important to continue doing the everyday things you enjoy. Drawing on personal experience, she recommends finding an independent mental health professional to offload on. “Don’t make every conversation with your partner and friends about your concerns, because that only isolates you further, making it likelier that you’ll end up behaving irrationally.” 

From a practical standpoint, the best way for society to support victims of retaliation is to pay their legal fees, says Peter van der Velden, senior researcher at CentERdata, a Dutch research institute, and lead investigator of the study published in Psychological Reports. “What we know from research is that financial problems are a main stressor, few people have money for a lawyer after losing their job.” Something organisations should consider doing, that might strengthen their culture, is to look for opportunities to hire former whistleblowers rather than giving them a wide berth, says Marianna Fotaki, professor of business ethics at the University of Warwick Business School. 

Ms Barlow says she still has “bad days”, though increasingly less so. Finding people who have had similar experiences, she says, is helping her rebuild her shattered sense of self. “It keeps your feet grounded in reality, not the manipulated version of reality that your employer wants you to believe.” 


The Choreography of Retaliation 

When organisations retaliate against employees, they tend to do so through a gradual piling on of pressure that pushes the individual to the point where they mistrust their own judgment, says Kathy Ahern. They become anxious, hypersensitive to threats and easy to cast as “overreacting, or simply disgruntled”. Some warning signs of what she terms a “gaslighting” pattern of retaliation include:

 ▪Reassuring employees that their complaints are being investigated, while repeatedly stalling.

 ▪Using euphemisms that diminish the person’s experience, such as “grey area” or “personality clash” for victimisation. 

▪Finding fault with a highly-regarded employee who makes a complaint. ▪Praising someone for reporting misconduct, while doing nothing to prevent reprisals.

▪ Encouraging an employee who has suffered retaliation to take sick leave or undergo a psychological evaluation, under the guise of offering support.

Those guilty of malpractice or wasting public money must not escape punishment.

From the BBC to RBS, we have to find a way to stop this injustice

Those guilty of malpractice or wasting public money must not escape punishment, even if criminality can't be proved

• 
• • John Kampfner
  • The Guardian, Thursday 5 September 2013 20.30 BST

'Occasionally businessmen are punished – think Bernie Madoff – but his case is totemic because it is so rare.' Photograph: Mario Tama/Getty Images

What do the following recent news stories have in common? IT failings over the introduction of new welfare payments; the never-ending saga of BBC executives paying each other silly money; defence procurements coming in billions of pounds over budget; the recklessness of the bankers? Throw in dozens of other cases from the private and public sectors and there emerges a clear pattern: of decisions taken by individuals or groups that constitute failure or dereliction of duty but which go unpunished.

The word "punishment" is enticingly loaded. In international relations it is in vogue. Should Bashar al-Assad be punished if it is clear his government used chemical weapons? From the former Yugoslavia to Rwanda, attempts are made to punish world leaders and their henchmen. Occasionally, businessmen are punished too – think Bernie Madoff and his Ponzi schemes. He received 150 years in jail. But his case is totemic because it is so rare.

Where there is incontrovertible evidence of fraud, courts usually convict. The individual has a criminal record. It is hard, although not impossible, for that person's career and reputation to recover. Justice is done.

But far more difficult are the many cases in which senior public figures are culpable in decisions that have led to huge financial loss, in some cases ruining peoples' lives, but criminality cannot be proven. The bar for a trial is necessarily set high and can be insurmountable.

So what possible punishments are left? Summary dismissal is used against a shopfloor worker for nicking a few products from the assembly line, or a middle manager for sexual harassment. The weapon is almost never deployed against top executives. Part of the reason is financial – companies would rather pay them off than endure the publicity of a tribunal. The more pernicious reason is cultural: as a member of the board or senior executive you never know when you might bump into that person. Why leave yourself susceptible to a quiet act of revenge in the future when you don't have to?

It is only when the public bays for blood that extra measures are taken. The story of plain Fred Goodwin is brilliantly told in Iain Martin's new book, Making it Happen: Fred Goodwin, RBS and the Men Who Blew Up the British Economy. Aggressive, obsessed by the baubles of wealth, Fred the Shred is so determined for RBS to take over the banking world that he omits to find out what his wheeler-dealer teams are up to. At least as culpable are the board members who are quite happy to take the money for their non-exec non-labours and forget to ask questions.

Goodwin – friend of the royal family, prime ministers, chancellors and the Scottish political class – is stripped of his knighthood. He retains an enormous pension and is to be found polishing his vintage cars, the pantomime villain. It makes us feel better and the corporate and political worlds can "move on".

But the odd case of ritual humiliation is no substitute for better governance. That will not improve until proper systems of accountability for failure are introduced. In the private sector, when shareholders incur losses, it is up to them to complain – but almost invariably they don't, as institutional investors account for most holdings. Why would they want to rock the boat?

When public money is spent, the case for action is even clearer. It beggars belief that during the bank bailouts of 2007 to 2008, ministers did not – even as they took urgent decisions – do more to punish those whose hubristic decisions led to the crisis.

At the BBC, although the money lost has been tiny in comparison to the banks, the sense of injustice at the largesse shown by management towards its own is felt just as strongly. A few dozen people paid each other ridiculous sums as they moved from one job to another or began to enjoy lucrative early retirement. They did so believing (correctly) that they would get away with it, and convinced themselves they deserved it.

After inquiries by a Tory MP, the Crown Prosecution Service probed whether crimes had been committed and concluded that they hadn't. To prove criminal intent, if there had been, would have been too hard. To prove malpractice might have been easier, but there is no effective mechanism.

We need to devise a process whereby serious action can be taken against egregious acts of back-scratching, waste and lack of rigour in governance. It is surely a win-win for any political party with the courage and tenacity to introduce such a system. Some models already exist. Professional bodies for doctors, lawyers and accountants serve this purpose. Are they robust enough? A new public body could be created, perhaps including representatives of the CBI and TUC. Or if that's too cumbersome, maybe the Commons public accounts committee – which is good at haranguing and exposing but has little powers besides – could play a part.

Transparency is key. Legislation must be introduced to override confidentiality and data protection clauses in specific cases under investigation. Checks and balances would be needed to protect those who feel wrongfully accused. Those found to have played fast and loose with others' money could be put on a blacklist of public appointments for a specified number of years. There may be other ways too; but this is a debate which needs to be started.

Responsible executives, non-executives and civil servants have nothing to fear in exposing and punishing the bad apples. Bringing out the stocks serves little purpose. But, in order to begin the herculean task of improving confidence in public life, we need far smarter forms of redress.