What is whistleblowing?
This term is used when an employee (including agency workers) passes on information concerning wrongdoing, either within their workplace or outside it that affects other employees or members of the public.
The disclosure could be about the wrongful conduct of an employer, a colleague, a client or any third-party person or organisation.
You may also hear the words “protected disclosure” or “making a disclosure in the public interest” used to describe this.
Reacting to a whistleblowing disclosure
It can be an unsettling experience for an employer to receive a disclosure from a whistleblower – it implies that something may be wrong in the organisation and that a lot of work will be required to sort it out.
So, what should an employer do if this happens? Steps to be taken include:
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Hold a meeting with the whistleblower (if their identity is known) to gather all relevant information.
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Keep a note of discussions with the whistleblower and provide them with a copy.
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Keep a written record of any decisions or actions taken following the making of a disclosure by an employee.
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Make arrangements for disclosures to be reported anonymously.
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Provide employees with sufficient support through mentoring or counselling and allow them to be accompanied at the meeting if they request it.
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Record the number of whistleblowing disclosures received and their nature; if they are indicative of a trend, action can then be taken.
To make sure individual managers know how to react appropriately, they should receive training on dealing with disclosures. In larger organisations, a specialised team can be set up for employees to approach.
The whistleblowing policy
With the exception of certain companies in the financial sector (see below), it isn’t a legal requirement to have a whistleblowing policy in place, although it’s certainly advisable and wise to do so.
The policy should be easily available to all employees and may include the following sections:
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A short explanation of whistleblowing legislation and how it protects employees
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The definition of a protected disclosure
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How the organisation handles whistleblowing
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How to make a disclosure
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What will happen once it has been made
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A commitment to treat all disclosures consistently and fairly.
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A commitment to maintain the confidentiality of the whistleblower if requested, as far as is reasonably practicable (unless the law requires the employer to break that confidentiality).
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A time frame for handling disclosures.
When employees undergo induction training, they should be made aware of the company’s stance on whistleblowing and how they can raise concerns and make protected disclosures, should they feel that they need to.
Protection under the law
An employee who makes a disclosure will be protected under the law if they reasonably believe:
1. that they’re acting in the public interest. This usually rules out personal grievances and grudges. “In the public interest” has been extended by recent cases and can apply even to a small group of workers within a company.
2. that the disclosure highlights past, present or likely future wrongdoing falling into one or more of the following categories:
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Criminal offences (including financial crimes such as fraud).
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Failure to comply with a legal obligation.
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Miscarriages of justice.
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Endangering someone’s health and safety.
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Damage to the environment.
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Covering up wrongdoing in the above categories.
If a whistleblower believes that they’ve been unfairly treated because they have made a protected disclosure (for example, victimisation or dismissal), they have the right to take their case to an employment tribunal.
If they can prove that their dismissal was the result of a protected disclosure, they can bring a claim for automatic unfair dismissal, even if they haven’t been working for the employer for two years (the usual length of service requirement).
The dismissal will automatically be unfair and there is no cap on the compensation that can be awarded.
Anonymous disclosures
The organisation doesn’t have a legal obligation to protect a whistleblower’s confidentiality. However, it is good practice to do so unless required by law to disclose it.
Managers dealing with a disclosure should be briefed on how to protect personal information.
If information is disclosed anonymously, it’s still important for the organisation to act on it.
However, if the employer can’t contact the whistleblower, they’re going to be limited in their investigation of any allegations raised.
Prescribed persons
If the employee doesn’t feel confident about making a disclosure to their employer, they can opt to make it to a prescribed person or body.
Prescribed persons are mainly regulators and professional bodies, but they could also be an MP or legal adviser.
The relevant prescribed person depends on the subject matter.
A full list of prescribed people and bodies can be found here:
Rules on whistleblowing in the financial sector
We earlier mentioned rules that apply to certain firms in the financial sector, making it mandatory for them to have a whistleblowing policy in place.
Affected firms are:
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Building societies, banks, credit unions and other UK deposit takers who have assets of £250 million or above
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Companies designated by the Prudential Regulation Authority as investment firms
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Insurance and reinsurance firms that fall within the scope of Solvency II (a European directive
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that codifies and harmonises European insurance regulation).
If the firm is a UK branch of an overseas bank, the rules don’t apply.
Need advice?
Get in touch to discuss our whistlebox which not only gives your organisation a clear whistle-blowing policy and procedure to follow but also provides your employees with a safe and independent channel through which to raise their concerns. Whistlebox is available 24 hours a day, seven days a week.
All disclosures made through whistlebox are reviewed by our trained and experienced legal professionals and all reports contain immediate next steps legal advice.
For more information, email us at whistlebox@rradar.com or call us on 03330 414 996