Firms must make it easy for whistleblowers to act

Despite
the Public Interest Disclosure Act, organisations need to ensure that all staff
disclosures are properly managed to limit the risk of further damage being
caused

At
the turn of 2002, Sherron Watkins of Enron, Cynthia Cooper of WorldCom and Coleen
Rowley of the FBI were heralded Time magazine’s ‘Persons of the Year’. They
dared to blow the whistle on inappropriate actions within their institutions.
Their actions marked a heightened need to manage such disclosures.

The
Public Interest Disclosure Act 1998 (PIDA) was introduced in the UK to protect
staff who expose impropriety at work. It aims to ensure they are not unfairly
dismissed, passed over for promotion or denied training and other benefits, for
being ‘disloyal’.

Disclosures
which qualify for protection under the PIDA relate to past and existing events
or events likely to occur in the future, involving:


A criminal offence


A failure to comply with a legal obligation


A miscarriage of justice


A danger to the health or safety of any individual


Damage to the environment


A deliberate cover-up of information tending to show any such matters

To
make a protected disclosure, the employee must act in good faith and typically
report their concerns within the confines of their organisation. Alternatively,
they can report to a prescribed regulatory body, such as the Health and Safety
Executive for health and safety matters, or the DTI’s Companies Investigation
Branch for fraud and other misconduct.

The
PIDA allows staff to make protected disclosures to non-prescribed persons
outside the organisation. For instance, where employees reasonably believe they
will be victimised for making a disclosure to their employer or a prescribed
person.

The
same applies where no person is prescribed, and the employee reasonably
believes it likely evidence will be concealed or destroyed upon disclosure to
an employer. In such cases, the employee must make the disclosure to a
non-prescribed person reasonably believing that it is substantially true, in
good faith and without personal gain.

The
PIDA is a worthy reform, but demonstrates the limits of what legislation can
achieve. Is an employee really likely to believe their employment pros-pects
will be unaffected if they blow the whistle? To obtain protection after
whistleblowing, an employment tribunal must decide their disclosure was
reasonable – a difficult judgment, which prospective whistleblowers might be
reluctant to make.

Organisations
need to encourage disclosures from staff, and put systems in place to channel
them internally through appropriate conduits. Properly managed disclosure is
good risk management and HR policy too.

Organisations
should consider offering a hotline for whistleblowers via a third party, such
as the organisation’s lawyers. Having a legal intermediary between the
whistleblower and organisations can have its advantages.

It
can:


Maximise prospects of gaining helpful information for the company


Make it less likely that damaging revelations will be made directly to a
regulator, which might lead to a raid or unannounced visit


Ensure that lawyers are quickly briefed


In appropriate circumstances, make it possible to claim benefits of legal
professional privilege, thus protecting the confidentiality of certain documents

Whistleblowing
policies are beneficial to all organisations. Yet relatively few take advantage
of this simple method of containing risk. No organisation can afford to expose
itself to the risks of unmanaged public disclosures.

By
Steve Francis, Partner, DLA

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