WHISTLEBLOWING is often seen as a sign that something is not right in the workplace. So, it is entirely understandable for organisations to feel aggrieved if anonymous employees leak concerns or information about an employer’s actions.
It’s essential that businesses develop a deeper understanding as to just what whistleblowing actually is and what responsibilities they have should it ever 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’s 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. Whereas whistleblowing identifies significant issues that are likely to more widely impact the public. 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. It comprises 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 example, they may have 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.
When the Whistle is Blown
Businesses should establish a transparent, communicative, and safe working environment, where employees at all levels feel empowered to raise matters of serious concern. Whistleblowers should be allowed to raise genuine concerns and expect them to be 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 businesses manage instances of whistleblowing could eventually dictate the magnitude of any financial impact, but also the extent of reputational damage that is incurred. Whistleblowing needs to be taken seriously, and comprehensively investigated.
The person making a disclosure will need to be interviewed and offered the opportunity to explain why they felt that whistleblowing was their only viable course of action.
Whistleblowing is not an act that is usually undertaken lightly, so it is best practice to allow those who have resorted to such measures to be supported through all meetings by either a colleague or a trade union representative. You should help the individual through the process, as it is highly likely to be a stressful time.
Maintaining confidentiality is paramount, so be mindful when selecting other people from within the business to conduct investigative action.
When investigations are complete, results should be reported directly to the whistleblower, along with details of corrective measures that will be implemented. Even if there isn’t any evidence that supports their claims, the whistleblower should not under any circumstances be persecuted for their actions. However, if it is determined that the disclosure was malicious, you might wish to take disciplinary action.
If legitimate concerns arise from the disclosure, you should respond proportionately and report details to the appropriate regulatory bodies. You must also make disciplinary rulings relating to employees identified in the disclosure, pursuing expert legal advice as required.
Be aware that attempts made to gag or silence employees concerning a protected disclosure whether via a settlement agreement or another form of agreement are not advisable and could lead to detriment claims.
If a person has raised a legitimate concern in a protected disclosure and you have not reacted correctly, that individual has the right to report the matter directly to the appropriate authorities themselves.
In rare instances, a whistleblower may choose to go straight to the media, and that can have major reputational repercussions. If in any doubt about the next steps, seek specialist legal advice, but do not act in haste, whatever else happens.
About the Author
Alec Colson is a Partner and Head of Employment Law at Luton-headquartered law firm Taylor Walton. He specialises in Employment and Industrial Relations Law, advising commercial and public sector clients on all aspects of employment law. Alec has a particular expertise in discrimination law and regularly provides training on Employment Law and HR matters.