USS whistleblower ‘breached confidence’ by talking to press

The investigation into the whistleblower who raised concerns about the governance of UK higher education’s main pension scheme accused her of “breaching her duty of confidence” by reporting her concerns to the media.

The probe led to University of Warwick statistician Jane Hutton, who repeatedly questioned the Universities Superannuation Scheme’s reported deficit, being fired from the USS board in October 2019.

According to the investigation, Professor Hutton was required “to keep all information obtained during the course of her directorship confidential”.

At the time USS said that the final report, launched after directors raised concerns that her conduct “was affecting the board’s ability to function”, could not be made public as it contained information that was “legally privileged and highly sensitive”. Professor Hutton and others were provided with the executive summary and offered the opportunity to view the full report but only if read in a secure room under observation by a solicitor, without taking any notes and with an undertaking not to discuss, disclose or use any part of it.

Professor Hutton repeatedly called for the full report to be made public. A document purporting to be the executive summary, anonymously posted online on 22 February, says that Professor Hutton’s repeated requests to investigate the USS deficit “were disproportionate in the circumstances”.

This caused “a significant amount of board, executive and advisers’ time and fees to be incurred, the report says.

The executive summary also accuses her of making the disclosures of confidential information to the regulators and media because she “did not get the satisfaction she sought on the 2017 valuation”.

According to the executive summary, in June 2017 Professor Hutton identified what she believed to be an error in the retirement rate calculations, which was upheld but dismissed as “immaterial”.

Then in July she expressed her concerns regarding the legal position of USS “in respect of the assumptions and valuations work” of the 2017 valuation. However, the USS’ actuary and chief risk officer said there was nothing in her concerns that should cause the board to review decisions made towards the valuation.

In 2019, she made a number of disclosures to the Financial Reporting Council, The Pensions Regulator, and the joint negotiating committee for USS issues on which Universities UK and the University and College Union are represented. She also gave a series of interviews to the Financial Times, Times Higher Education and BBC Radio 4.

She told THE that she had been obstructed in her bid to investigate an alleged error in the calculation of the scheme’s funding shortfall, which is still a key issue in the ongoing industrial action in the sector.

According to the investigation, speaking to the media was a “breach of duty of confidence in contract” and “by no means a proportionate response” to the issues, which were still being investigated by regulators, and therefore she could not be offered protection as a whistleblower.

According to the report, her approach to USS was driven by her “academic background, a general distrust toward the actuarial profession, a distrust in and adverse views toward those responsible for the administration of the scheme”.

However, the report admits that Professor Hutton “believed she was fulfilling her duties”. It also recommends that consideration be given to establishing the mechanisms for provision of data and information to directors.

The report adds that, “in the context of what is clearly a difficult and potentially controversial exercise, consideration should be given to whether any greater level of transparency as to the valuation process and issues arising out of it can be given to stakeholders in order to provide additional levels of comfort that the process is being conducted competently”.

Speaking previously, Professor Hutton has said that she “does not accept the validity of the process [USS] have followed or the validity of the decision”.

She said there had been “very conspicuous discrepancy between the claims around openness and transparency, and the actual responses when questions are asked”.

A USS spokeswoman said that the summary was “confidential and legally privileged”. “Its status has not changed in any way since it was finalised and legal counsel have advised that because tribunal proceedings have been lodged we should not be commenting on or publishing any documents relating to matters that may be the subject of such proceedings,” she said.

anna.mckie@timeshighereducation.com