We have all seen examples of whistleblowing in the news – from NHS staff on issues of patient care to financial advisors raising concerns regarding the management of funds. However, whistleblowing can occur in any organisation and it is important that you are able to recognise it if it happens in your business and know how you should respond to it.
The law on whistleblowing is quite complicated. Employees who whistleblow (known as making a protected disclosure) have special protection in law and are protected from ‘suffering a detriment’ or being dismissed because they have made a protected disclosure. If an employee is dismissed because they have whistleblown, their dismissal will be automatically unfair with no limit on the amount of compensation they can receive. Not all disclosures are protected and so it is important to take legal advice at an early stage.
Employees could whistleblow as part of a grievance or disciplinary process or even verbally during an informal meeting in the workplace. So, as an employer, you need to recognise whistleblowing when it occurs and manage it effectively.
Whistleblowing occurs when an employee makes a ‘qualifying’ disclosure that is protected in law. A qualifying disclosure is a disclosure of information which shows or tends to show that one or more of the following has occurred or is likely to occur:
- Criminal offences
- Breach of any legal obligation
- Miscarriages of justice
- Danger to the health and safety of any individual
- Damage to the environment
- The deliberate concealing of information about any of the above
Following a change in the law, a disclosure now has to also be made in the public interest and the law is still evolving as to what this means.
This is complex legal area and so whistleblowing will not always be immediately obvious to you or your managers. Because of this, you should seek specialist advice in any event where an employee appears to be raising any issues or concerns that could fall into one or more of the above categories.
A good whistleblowing policy encourages employees to report any concerns about wrongdoing or dangers internally through the proper channels, and as early as possible. This will allow the concerns to be investigated, rather than the employee keeping them to themselves through fear, or leaking information to the media.
There are also other good business reasons for having a whistleblowing policy, such as:
- Encouraging a culture where concerns are reported internally at an early stage makes it easier for management to address those concerns and therefore avoid more serious regulatory breaches or reputational damage.
- The Bribery Act 2010 created a strict liability corporate offence that applies where an organisation fails to prevent bribery by a person ‘associated’ with it. It is a defence to show that the organisation had in place ‘adequate procedures’ designed to prevent bribery. Also, the government guidance stresses that it is important for organisations to have in place effective whistleblowing policies and procedures that encourage employees to report bribery.
Our specialist employment lawyers can help you draft an effective whistleblowing policy tailored to your organisation and business requirements.
Thorntons Employment Law team can help you identify when a disclosure will qualify as a protected disclosure and how it should be investigated. We can also help you manage employees who allege they are whistleblowing when their disclosure would in fact not be protected and to take unconnected action against an employee who has whistleblown in the past.
Whistleblowing allegations (whether true or not) can be extremely damaging and our advice always takes into account reputation management both internally and externally
We can also assist you to draft an effective whistleblowing policy, which will guide your employees as to how to make a protected disclosure correctly. More importantly, it will also guide your managers on what whistleblowing is and how to manage a situation where an employee raises issues that could amount to whistleblowing.
It is vital that individuals who may be involved in investigating or making decisions in whistleblowing cases have a good understanding of the law and what they can and cannot do. We can provide specific training on this.
Given the seriousness and complexity of whistleblowing law, it is important that you take legal advice as soon as possible. With our proactive and commercial advice Thorntons Employment Law team can help to find the right solution for you. Give one of our team a call on 03330 430 350 , or complete our online enquiry form and we will contact you.