Do your employees know what a whistleblowing procedure is? More importantly, do you have one in place? During the Covid pandemic there was a surge in the number of employees who were dismissed after making whistleblowing disclosures about Covid-19 related concerns. In fact, it became such a problem that it’s resulted in a government review of whether the current legal protection goes far enough. And it’s likely that quite a few companies will now be taken to tribunal. How prepared would your company be if an employee wanted to raise a whistleblowing claim? And are you confident that it would be handled correctly, or could it turn into a real headache for you?
What is whistleblowing?
Whistleblowing happens when an employee (or other type of worker) makes a disclosure about your company’s practices, or about a colleague’s conduct. They don’t have to have worked for you for a certain length of time before they’re able to make a disclosure. The whistleblower should believe that the disclosure is being made in the public interest (rather than being the type of issue that would be dealt with through a grievance process) and that it’s highlighting past, present or likely future wrongdoing within one of these categories:
- Criminal offences (including financial impropriety like fraud)
- Failure to comply with an obligation set out in law
- Miscarriages of justice
- Endangering someone’s health and safety
- Damage to the environment
- Covering up wrongdoing in any of the above categories.
Whistleblowing disclosures are protected by law: whistleblowers have statutory protection against dismissal or detriment, so they’re able to raise issues safely. If the principal reason behind someone being dismissed turns out to be because they made a protected disclosure, it will be automatically unfair. It’s important that employees and other workers are confident in their ability to raise concerns without facing any form of negative comeback. This is where a whistleblowing procedure is necessary so employees understand it and the protection they have in law if they need to blow the whistle. If employees attempt to raise legitimate issues and they are not dealt with appropriately, your company might find itself in a vulnerable position; this case resulted in a whistleblower being awarded £20,000 after feeling forced into taking action against her NHS employer who she believed was failing to adequately safeguard the children in its care.
Do you really need a formal whistleblowing procedure in a small business?
You might think that because you have a fairly open and honest culture in your company, you don’t need any kind of formal whistleblowing procedure. It’s great if you have such a working environment and it might be that employees never need to use it. But don’t be under the impression that whistleblowing is an issue that only affects larger businesses. While it’s generally the higher profile organisations that have their cases highlighted through news stories, whistleblowing is an issue that’s relevant to every size of company.
A clearly written whistleblowing procedure protects both your business and your employees. It gives employees the information they need to be able to raise an issue correctly, with the knowledge that there will be a fair hearing. It can also help clarify when it isn’t appropriate to make a protected disclosure – for instance, if it’s a personal issue that should be dealt with via the grievance process. You’ll find the current Government guidance on whistleblowing procedures here. And it’s worth being aware that international standards body BSI has recently issued guidance offering advice on what employers should take into account when working on their whistleblowing management procedures.
Once it’s drafted, make sure that the procedure is clearly communicated so people know what to do and how to follow it, and that it’s referenced appropriately in contracts of employment and throughout other company policies and procedures where necessary.
Who should receive the whistleblowing report?
One of the challenges for smaller companies is finding the most appropriate person to handle the disclosures. In a larger company it can be easier as they often have HR or legal teams who can deal with them. But in a smaller company people are more likely to know each other and it can feel awkward raising an issue about a colleague to a colleague. In some cases, it can work better to use an external party as it creates greater trust that the whistleblower will be able to stay anonymous.
Expect more changes…
You’ll need to review your whistleblowing procedure periodically to make sure it’s still up to date. As well as the Government review, another issue to be mindful of is the arrival of the EU Whistleblowing Directive. Its implementation is being staged over the next few years according to employer size and, due to Brexit, it won’t affect every UK employer. But it’s expected to have implications for companies with some operations in the EU and, given the commercial pressures for alignment, its influence may extend beyond that.
Contact us if you need help
If you need support with creating your whistleblowing procedure, conducting an investigation into a disclosure, or if you’re considering having an independent person acting as your whistleblowing report receiver, please do get in touch with us to explore possible solutions.