HR RESOURCES:

Understanding Whistleblowing at Work

As UK businesses continue to face somewhat harsh and uncertain market conditions, an increasing emphasis has been placed upon the ethics surrounding common business practice, conduct and general employee wellbeing.

No ethical employer would want to encourage corruption or criminal practices within their workplace, but recent changes to laws surrounding workplace whistleblowing, and the culture surrounding its practice, have meant that many businesses are becoming increasingly concerned as to the damaging financial and reputational impacts of whistleblowing.

A Personnel Today survey has showed that whilst UK employees seem to be more lenient in their attitude towards questionable workplace practices than those in Europe, they are more likely to blow the whistle if they become aware of serious workplace misconduct. The Ethics At Work survey found that 24 percent of UK employees were aware of serious misconduct within their workplace, with 48 percent of those stating that their concerns surrounded the unethical treatment of people.

However, recent changes to laws surrounding whistleblowing have left senior MPs and campaigners calling for an overhaul, as they argue that they do nothing to stop the practice of whistleblowers routinely losing their jobs after lifting the lid on malpractice such as bullying, faulty equipment or unsafe staffing levels.

What is whistleblowing?

Essentially, whistleblowing occurs when a worker provides certain types of concerning information that has come to their attention through work. It is more formally known as ‘making a disclosure in the public interest,’ and tends to cover disclosures on the following areas:

  • Criminal offences
  • Miscarriages of justice
  • Financial malpractice
  • Breaches of legal obligations
  • Dangers to the health and safety of a business environment
  • Dangers to the health and safety of individuals
  • Damages to the wider environment as part of business operations

A protected disclosure can also be made if an employee discloses information relating to the deliberate concealment of evidence about any of these matters.

Are whistleblowers protected by UK law?

Protection exists for employees, employee shareholders and those classed as ‘workers’ within the UK, but whistleblowers are only protected by law if they are made in the ‘public interest.’ Some self-employed people will also be protected if their work is completed in a place that is not under their direct control or management.

The Public Disclosure Act 1998 (PIDA) constitutes the main UK whistleblowing legislation, and applies to almost all workers within the British economy. For a disclosure to be fully protected, the employee in question must follow all procedures as set out under this legislation. The threshold for a public interest test must also be reached, and only legitimate concerns which meet the conditions of the test will provide the whistleblower with legal protection.

To be protected, the employee must hold a reasonable belief that the disclosure fits one or more of the areas above, and is either happening, has happened previously, or is likely to happen in the imminent future. The employee must also hold a ‘reasonable belief’ that the information they wish to disclose is true. If these conditions are met, the disclosure may well meet the threshold of a ‘qualifying disclosure’ in terms of the relevant legislation.

What issues do not count as whistleblowing?

Issues that do not count as whistleblowing include personal grievances such as bullying, harassment and discrimination, as these issues should normally be reported separately under your business’s official grievance policy. However, if an employee’s particular case relating to any of these issues could be interpreted as being in the interest of the public, it could still meet the legal threshold for a protected disclosure.

Who should an employee or worker blow the whistle to?

In the first instance, an employee is expected to raise the matter directly with their employer, and/or with the individual whose conduct is being questioned (if applicable). If this doesn’t result in a satisfactory response or resolution, disclosure must then be made to a ‘prescribed person’ on the official UK list of regulators.

A prescribed person is normally used as a phrase to describe an appropriate external body, that relates exactly to the nature of the issue being disclosed. For example, if the whistleblower wishes to report concerns relating to health and safety, a disclosure should ordinarily be made to the official Health and Safety Executive.

As employer, you should be aware that an individual can blow the whistle about issues outside of work, as well as within. The disclosure could relate to current incidents, events in the past, or situations that could occur in the future. An employee is also entitled to bring a claim if a new employer subjects them to any detriment because they have previously blown the whistle in a previous employment situation.

Why is it important to have an effective whistleblowing policy?

Ensuring that you have a clear, robust policy on the rules surrounding professional whistleblowing is vitally important.

As an employer, it is not just your employees who may have a lot at stake by making a whistleblowing accusation – you should keep in mind that you could be held accountable for any actions that could constitute victimisation or detrimental treatment towards a whistleblower, either by fellow colleagues or by business owners. You will have to ensure that you can solidly demonstrate that you have taken all reasonable steps to stop the acts from happening. One of these steps should include evidence that you have developed a solid policy on whistleblowing, which is clearly explained to all employees at the point of induction.

Having a clear procedure for raising issues that could construed as whistleblowing will help to reduce your risk of mishandling any serious concerns. It will also help to reassure your employees that there will be no adverse repercussions from raising concerns with you. It should be noted that you are also less likely to face a tribunal claim form any individual that may decide to blow the whistle.

Committing to a whistleblowing policy also shows that your business is dedicated to listening to worker concerns, and that you are likely to welcome any information that is brought to management attention.

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How can I put together a robust policy?

The main point of your policy should be to set out clear and concise guidance on what an employee should do if they should come across any forms of malpractice within your workplace. This should help to encourage your employees to inform the right business personnel of the situation, who will then be able to act on the disclosure accordingly.

Your policy should also include:

  • Specific examples of dangers, illegal actions or instances of unacceptable behaviour – clearly laying out what employees can identify as occurrences of wrongdoing
  • Guidance on the correct chain of authority who should be informed on any specific actions that may constitute wrongdoing
  • If the action is deemed more serious, such as above the actions of a line manager, specific escalation chains and actions should also be identified
  • Reassurance that all whistleblowing concerns will be treated in confidence and taken seriously, and that their wishes will be respected
  • A guarantee that any individual will not be penalised for informing management about any specified actions, whether they are found to constitute whistleblowing or not

How should I respond as an employer to whistleblowing?

If should receive a protected disclosure, or whistleblowing issue, you must ensure that it is taken seriously and reacted to swiftly and promptly.

In the first instance, you should investigate the claim internally, interview the person who has made it, and identify any individuals or groups who may be responsible for the issue. The interview should allow your employee to provide a written witness statement, setting out the nature of the disclosure, and the basis surrounding it. Ensure that they are aware they can be accompanied during the interview by either another colleague or a trade union representative.

You also maintain confidentially during your investigations for as long as possible. Once you have ascertained the nature of the disclosure, work out if you are the correct person to investigate, or whether this should be delegated to another manager. Once the investigation is complete, you must write to the employee in question, detailing the outcome of the investigation, and any steps that may now be taken. You must also ensure that the employee is not penalised in any way for making a protected disclosure, even if it is not upheld – this can only occur if you can prove that the claim is both untrue and made with malice.

If the allegation is well-founded, you must take appropriate action by reporting the matter to the correct external government body or department, who will then take over the investigation from this point. You can then take any necessary internal disciplinary action against relevant individuals. Keep in mind that the employee that raised the issue can also report it to the relevant governing body if they do not believe that you have in a timely manner.

5 key tips for effectively dealing with whistleblowing:

  1. Understand whistleblowing law

Employees should understand what allegations qualify as whistleblowing under current UK law. They must have all the information to hand to make an official disclosure. Ensure that they are fully aware of all rules and legalities surround the procedure.

  1. Introduce a whistleblowing policy and adopt the right procedures

Only government bodies and listed companies are legally required to have a whistleblowing policy, but it is certainly considered good practice to have one in case a whistleblowing should arise in the future. Encourage employees to raise any concerns with you in the first instance, prior to going to the regulatory body.

  1. Reassure workers that they will be protected

Make sure that all employees are aware that UK law protects them from being subjected to any detrimental treatment as the result of raising any whistleblowing accusations. If an employee is dismissed for whistleblowing, this will automatically be categorised as unfair dismissal.

  1. Respond to any allegations of wrongdoing

Ensure that concerns are dealt with swiftly and effectively, and call a formal meeting to discuss the employee’s concerns as soon as possible. Follow your policy guidelines as closely as possible to ensure fair treatment for all.

  1. Be prepared for whistleblowers to instigate employment tribunals

Allegations of whistleblowing will attract more adverse publicity than any other kind of claim. If a whistleblower is badly managed, you are likely to receive negative publicity, and have a much higher chance of your employee choosing to take you to an employment tribunal if they feel that they have been victimized or treated unfairly.

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