Alec Colson, Head of Employment Law at Taylor Walton, discusses how organisations should handle whistleblowing.

 

Whilst it might be understandable that organisations feel aggrieved if an anonymous employee has leaked concerns or information about their employer’s activities, it may be an indication that something is wrong in the workplace and the organisation has failed to act appropriately.

Therefore, instead of dismissing claims, it is essential that businesses develop a deeper understanding of what whistleblowing is and what responsibilities they have should an incident occur.

What is whistleblowing?

People who ‘blow the whistle’ are undertaking what is legally known as a ‘protected disclosure’ under the whistleblowing legislation contained within the Employment Rights Act 1996. It is crucial to be able to differentiate between a personal grievance made by a dissatisfied employee, and a protected disclosure made by a worried individual.

A grievance is of a more personal nature and generally only of interest to the individual raising the matter. Whistleblowing, meanwhile, identifies significant issues that are likely to impact the public more widely. These could relate to wrongdoing in the workplace in the past, present, or look to identify any risk of complications occurring in the future.

A ‘protected disclosure’ refers to the broadcast of any suspect material believed to be in the public’s best interests, comprising of at least one of the following topics: criminal offences by the business or its employees; not complying with legal obligations; violating health and safety protocols; damage to the environment, or the deliberate cover-up of any of these matters.

Occasionally, individuals may claim to be whistleblowing about work-related challenges, when in reality they have a personal grievance. For instance, having views at odds with the business’s activities, which may well be lawful, but personally troubling. Sometimes, what may at first appearance seem to be a personal grievance, could quantify as a protected disclosure after a detailed investigation.

Once the whistle has been blown

Businesses should establish a transparent, communicative, and safe working environment, where employees at all levels feel empowered to shine a spotlight on any matters of serious concern. Whistleblowers should be allowed to raise genuine concerns and have them managed as appropriate.

Workplace whistleblowing policies should be well communicated and understood by employees. Their very existence can help to encourage workers with any concerns to come forward earlier and allow matters to be dealt with internally, preventing them from becoming public knowledge, and protecting reputations.

It’s also essential that all workers within an organisation understand that any victimisation of whistleblowers is an offence warranting disciplinary action and that this information is made evident within all HR policies. Should a whistleblower feel that they have at any point been victimised, it could result in a claim for detriment.

Furthermore, should a person be dismissed as a result of making a ‘protected disclosure’, it will be a case of automatic unfair dismissal. In these circumstances, employees are not required to have two years’ service to bring a claim as they would usually.

Handle with care

How an organisation handles whistleblowing could ultimately decide not only the size of any financial impact, but the degree of reputational damage sustained. Whistleblowing must be taken seriously in the first instance and the matters raised in the disclosure investigated thoroughly.

The individual making the disclosure should be interviewed and given the opportunity to explain the reason for their disclosure and why they believed whistleblowing was their only appropriate course of action.

It is unlikely the individual will have taken this action lightly. It is therefore good practice to allow them to be accompanied either by a work colleague or a trade union representative at any investigation meeting. You should support the individual throughout the process, which is likely to be a stressful time for the individual involved.

You must maintain confidentiality as much as practically possible and be careful when choosing other people from within the organisation to conduct the investigation. Consider drafting in managers from outside the team or the group involved, if necessary.

When satisfied with your investigation, report the results to the whistleblower, detailing any corrective actions you are instigating. It is essential the individual is not victimised for making their protected disclosure, even if you have found no supporting evidence for their claims. If you establish the disclosure was malicious, you may consider disciplinary procedures to be appropriate.

If a disclosure raises legitimate concerns, you must respond proportionately and report the matter to any appropriate regulatory bodies. You should also make internal disciplinary decisions concerning any employees identified in the disclosure, seeking professional legal advice if necessary.

Recording the number and nature of whistleblowing disclosures is good practice, as it allows you to detect any patterns of concerning activity. This will ensure such activity can be addressed in good time and limit the risk of further damaging disclosures.

Please note that any attempt to gag an employee in relation to protected disclosures, whether through a settlement agreement or any other form of agreement, is not legally enforceable and could lead to detriment claims.

If someone believes they have raised a genuine concern in a protected disclosure and you have not responded appropriately, they can report the matter direct to the appropriate authorities. In rare circumstances, a whistle-blower will go direct to the media, as with the recent Facebook issues, and that can cause serious reputational damage. If any doubt exists, seek expert legal advice and whatever happens, do not act in haste.