Accountancy firm Grant Thornton’s recent International Business report revealed that only 40% of UK businesses have measures in place to accommodate employees that want to expose inappropriate or illegal activity at work.
It is a good time, then, for the British Standards Institute and charity Public Concern at Work (PCAW) to launch a code of practice to guide organisations on how to run, promote and review effective protection for employees who disclose wrongdoing. It recommends key elements in making whistleblowing work and marks the 10th anniversary of the Public Interest Disclosure Act (PIDA), which aims to protect whistleblowers from victimisation or dismissal.
So what is the relationship, if any, between the code and the PIDA? PCAW deputy director Anna Myers stresses that one key difference is that PIDA applies to those who have already suffered a disadvantage or been dismissed unfairly for whistleblowing.
“The code, however, is going back to the roots of the issue, which is how do we ensure that where there is a serious safety issue, malpractice or fraud, that these concerns are raised early enough,” she says.
“Employees want to know that they will be listened to and not questioned as to why they are raising concerns. We want organisations to get it right and if they are unwilling or unable to, then the proper authorities can address it.”
By following the code Myers hopes organisations will manage whistleblowing issues swiftly and realise that information raised must be dealt with. The code does not bring any legal changes to the 1998 Act, which emerged following several scandals and disasters in the late 1980s and early 1990s including the Clapham rail disaster and Zeebrugge ferry tragedy. It was shown that workers had been aware of the dangers but did not raise any concerns with their employers.
“It reinforces the purpose of the legislation,” Myers explains. “There is a risk that people are raising matters and still do not quite understand how the legislation operates. This code can strengthen the real message of the act. It doesn’t change what it’s doing.”
Myers believes the code could be used in employment tribunals as a benchmark to see how robust an organisation’s whistleblowing arrangements are.
“It could be seen whether there was a system that the employee could have used. Tribunals could look at this code to see if it was reasonable or not for an individual to make an external disclosure,” she explains. “It will give tribunals more to work with. Employers could also use it as part of their defence if they are being investigated.”
However Christina Morton, professional support lawyer at solicitors Withers, stresses that the code does not have statutory force and is only a guide on how the legislation should be applied in practice.
She adds: “The code can’t be taken into account by a tribunal as in a discrimination case with statutory codes. But I can envisage people will go into tribunals and say there is this document available and a tribunal will ask why it hasn’t been complied with. A tribunal wouldn’t be entitled to draw inferences from that but it might draw some conclusions from an abject failure to comply with the code. It will be interesting to see how tribunals respond to the document. It has the capacity to become the benchmark on this issue.”
What’s the difference?
Morton adds that there is also still a problem of determining the difference between personal grievances and public interest disclosures.
“Most organisations will have specific policies for dealing with grievances. A whistleblowing policy is there for public interest issues but it is easy to find yourself in a grey area and employers can struggle to work out the appropriate policy to use,” she says.
“The code helps elucidate these issues especially regarding bullying and harassment, which could have a public interest angle. It gives a steer to employers on how to proceed if they are unsure and whether they should consider a bullying allegation as a tip-off about a more general problem.”
Myers believes many organisations should manage and communicate their whistleblowing policies more effectively.
“A company may have some great policies, which are at the back of a 100-page office manual and nobody knows about. A policy should direct employees to whom and where they can raise their concerns. They should know who their alternatives are if they can’t raise an issue with their line manager and which body outside the organisation they can raise it with,” she says.
“Employees are not always right, but there is no point ignoring the information. More and more organisations are realising that they ignore this at their peril at the risk of millions of pounds.”
HR’s changing role
HR managers have a big role to play here and it is one that has changed over time.
“They now know that they don’t have to own a whistleblowing policy in an organisation and are shifting the responsibility a little more properly over to governance and risk. It is more of a team effort now among senior management. HR managers have a lot more support to make whistleblowing an issue and to keep it alive through communication,” suggests Myers. “HR is the motor and this code will help them sell their policies.”
Myers says HR teams should review their policies to ensure that they are not complicating the process. He says: “It is not highly procedural. Employees should have the power to raise issues quickly.”
Morton adds: “HR managers must investigate promptly and objectively. Managers must be trained to understand the legal framework and to be able to recognise this kind of complaint and respond appropriately.”
So why should HR care?
“It’s about the culture of the business and HR should take this seriously,” says Mike Emmott, employee relations adviser at the CIPD.
“It’s a good example of how HR needs to get involved in managing risk. If employees can’t report their concerns then further damage is done to the business. HR’s job is to provide a channel where employees have the confidence to express their worries.”
Offshore oil drilling company Fluor has an established whistleblowing policy. Many of its staff are on short-term contracts and traditionally there has been a reluctance among them to report health and safety issues to their managers.
According to the company there “used to be this perception that your contract might not be renewed if you spoke out or rocked the boat”. That culture has now changed after the development of Fluor’s whistleblowing procedures.
Today, all contract staff are told to inform the HR department if they are aware of any health or safety issues at work. They are offered assurances that if they report any concerns or issues these will be treated in good faith by management.
The company’s safety managers are also proactive in keeping the message of the whistleblowing procedures at the forefront of the organisation. As part of their role they ask staff if they have anything they would like to report to management.
Fluor however is keen to stress that this culture of openness has been driven by a realisation that it provides a more professional way of working, rather than by the introduction of the Public Interest Disclosure Act legislation.
To make whistleblowing work, a company needs to:
- Provide examples that distinguish whistleblowing from grievances.
- Give employees the option to raise a concern outside line management.
- Provide access to an independent helpline offering confidential advice.
- Offer employees a right to confidentiality when raising their concerns.
- Explain when and how a concern may safely be raised outside the organisation.
- Ensure that it is a disciplinary matter to victimise someone that discloses wrongdoings and for someone to maliciously make a false allegation.
It is important that those at the top of an organisation show leadership on this issue to help ensure it is acceptable to raise a whistleblowing concern, and that this is promoted regularly, says PCAW.