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This article first appeared on People Management on 18 September 2024.
A strong whistleblowing policy encourages a culture of openness and accountability. It demonstrates to the workforce that misconduct will not be tolerated and that those who report wrongdoing will be supported, with their concerns investigated and addressed.
As whistleblowers are legally protected from being subjected to any detriment or being dismissed because they have made a protected disclosure, it’s important that whistleblowing concerns are taken seriously and dealt with quickly and effectively to mitigate legal risk. Issues that employers should consider when creating a whistleblowing policy include:
- Who will have responsibility for the policy? The board or someone sufficiently senior (commonly referred to as a whistleblowing champion) should have overall responsibility for the effectiveness of the policy, with day-to-day responsibility delegated to HR. Whoever has day-to-day involvement in the policy should be familiar with it and receive appropriate training and have access to legal advice to deal with sensitive issues that inevitably arise.
- Who is covered? Employees and workers (including agency workers) are protected under statute. It’s usually best to widely define who is covered by the policy, as it’s in the employer’s interests to encourage internal reporting.
- What is covered? The legal definition of whistleblowing involves the disclosure of information that the worker reasonably believes is made in the public interest and shows one or more types of wrongdoing or failure. However, employers may wish to adopt a wider definition in the policy to encourage the reporting of wrongdoing in any situation where the employee has genuine concerns. Including non-exhaustive illustrative examples of potential wrongdoing – eg, criminal activity, fraud, damage to health and safety, anything industry specific, etc – can also be helpful. Consideration should be given as to: whether the scope of the policy is appropriate to the organisation involved; the interplay with other policies that already exist; and how the policy relates to the regulatory framework and/or requirements of the organisation (if applicable).
- Process: the process should confirm to whom an employee should report concerns (such as a line manager or the whistleblowing champion) and ‘next steps’. Ordinarily, once a whistleblowing concern is raised, a meeting should take place with the employee to get further details and then an investigation should be carried out. Although it’s usually best to update the whistleblower of investigation progress and outcomes, sometimes confidentiality may prevent this from happening.
- Confidentiality: where possible, the disclosure and investigation process should be confidential (not least to reduce the risk of any potential victimisation claim) and the policy should highlight the importance of confidentiality.
- Anonymity: while the policy can discourage anonymous disclosures (it can make information gathering and investigating harder), there should still be a commitment to investigate concerns raised in this way. If the individual is concerned about their identity being revealed, it is worth encouraging them to speak to the relevant person (eg, whistleblowing champion or HR) about what measures can be put in place to keep their identity secret.
- External disclosures: while it’s preferable for staff to make internal disclosures first, the law does permit external reporting in certain circumstances. The policy can encourage internal disclosures in the first instance but signpost workers towards obtaining external independent advice (eg, from charities such as Protect) if they are considering making an external disclosure (such as to a regulator).
- Protection: the policy should make it clear that victimisation of whistleblowers will not be tolerated, and anyone found to have retaliated towards a whistleblower will be subject to disciplinary action. The policy should list the contact details of an appropriate person (eg, whistleblowing champion or HR) that a whistleblower should contact if they think they have or may suffer detrimental treatment as a result of raising a concern.
Employers should remember there is no minimum service requirement to bring a whistleblowing claim and the compensation is uncapped. Whistleblowing failures can have huge financial and reputational implications. Having a strong policy in place that is regularly reviewed, and promoted to staff, can help mitigate legal risk.
Should you wish to discuss any of the issues raised in this article, please contact James Baker.
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