Whilst business owners may feel wronged if an employee takes it upon themselves to leak their concerns about an employer’s activities, whistleblowing is very often a good indication that something is not quite right in the workplace.
But do most businesses actually know what is meant by the term whistleblowing? And what is the correct way to react if one of their employees chooses to make their grievances public? Let us take a look:
What is whistleblowing?
Whistleblowing is what is legally referred to as making a “protected disclosure” under the Employment Rights Act 1996.
It is important to know what the difference is between an unhappy employee with a personal grievance, and a concerned individual making a protected disclosure.
In short, a grievance is a matter of personal interest, whereas whistleblowing recognises serious concerns that are likely to have already impacted, or will continue to impact the wider public.
A “protected disclosure” means any release of information which is, in the reasonable belief of the worker making the disclosure, made in the public interest. It will usually involve at least one of the following issues; criminal offences by the organisation or its employees, failure to comply with its legal obligations, health and safety violations, environmental damage, or the deliberate suppression of any of these issues.
On occasion, a person may believe that they are whistleblowing about a work-related issue, when in actual fact they have a personal grievance, like having beliefs at odds with the organisation. But sometimes, what may at first appear to be a personal grievance may still amount to a protected disclosure after all.
Once the whistle has been blown
Every organisation should work to develop a transparent and safe working environment, in which employees at every level, feel able to highlight issues of concern. A whistle-blower should be able to raise their legitimate concerns and have them addressed appropriately.
By developing a whistleblowing policy and ensuring employees are aware such a process exists, it can encourage workers to raise their concerns internally and offer the organisation an opportunity to address all matters raised, without drawing any undue publicity.
It is also important to make everyone within an organisation aware that victimisation of whistle-blowers is a disciplinary offence.
If whistleblowers feel that they have been victimised in any way, it could lead to a claim for detriment. Furthermore, if they are dismissed for making a ‘protected disclosure’ it will be an automatic unfair dismissal, and the employee is not required to have two years’ service to bring a claim as they would for an ordinary claim. Again, including this in readily available policies and procedures can help the organisation avoid being held responsible for such acts on an individual basis.
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, therefore it is 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 whistle-blower, detailing any corrective actions you are instigating. It is essential that the individual is not victimised by any colleagues or management 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 silence or gag an employee in relation to protected disclosures whether through a settlement agreement of any form is not legally enforceable and could also lead to detriment claims.
If someone believes they have raised a genuine concern in a protected disclosure and their employer does not respond correctly, an individual can report the matter directly to the appropriate authorities. In rare circumstances, a whistleblower will go straight to the media, and that can have catastrophic reputational repercussions, so inaction is not an option.
Businesses need to take whistleblowing with the seriousness it demands. The important thing is to always seek expert legal advice, and whatever else happens, to never take action in haste.
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.
Taylor Walton is a renowned regional law firm, with more than 150 dedicated professionals, working from offices in Luton, St Albans and Harpenden, providing for businesses and individuals a full range of legal services, including Employment, Commercial Litigation, Professional Negligence, Corporate & Commercial, Commercial Real Estate, Residential Conveyancing, Private Client and Family Law.