Whistleblowing: five steps to be compliant with recent changes to legislation

Recent whistleblowing legislation changes have not made it easier for employees to disclose wrongdoing without risking accusations of disloyalty or damaging their career prospects, says Beverley Sunderland. She looks at how employers can better support a whistleblowing culture.  

No ethical employer wants crime or corruption in their organisation, but a report by international non-government organisation Blueprint for Free Speech found that the UK Public Interest Disclosure Act 1998 offers poor protection to whistleblowers and inadequately compensates them for retaliation. This, in turn, discourages workers from blowing the whistle on their colleagues.

In 2002, protection for whistleblowers was widened in the case of Parkins v Sodexho, when the Employment Appeal Tribunal (EAT) decided that workers could bring a claim based on an employer’s failure to comply with the provisions of its own employment contracts.

However, in 2013, the scope for whistleblowing was limited when the law was changed to require those making a disclosure to have a reasonable belief that it was in the public interest. Lack of a definition of the “public interest” has led to more uncertainty.

For example, in the case of Chesterton v Nurmohamed the EAT ruled that a disclosure did not have to relate to the population as a whole, provided it related to others apart from the whistleblower. The case is currently on appeal.

A 2015 report by whistleblowing charity Public Concern at Work (PCAW) showed that the negative perception of whistleblowing among employees persists. The charity reported that 50% of those who called the charity had either been dismissed or forced to resign after blowing the whistle.

So what should employers and HR professionals do to create a culture where workers feel confident and secure about reporting wrongdoing? Taking the following five steps will help to build a positive environment that encourages employees to report breaches of the law.

1. Understand whistleblowing law

Make sure that employee disclosures qualify as whistleblowing under the law. To be counted as whistleblowing, information must be disclosed; it is not sufficient to gather information or threaten to make a disclosure. The worker must reasonably believe that the information relates to one of six categories: criminal offences; breach of any legal obligation; miscarriages of justice; danger to the health and safety of any individual; damage to the environment; or the deliberate concealing of information about any of these.

There are strict rules as to whom the disclosures should be made. The law encourages whistleblowers to make the disclosure to employers in the first instance. Stricter conditions apply to disclosures made to third parties.

Employers should be aware that an individual can blow the whistle about something outside of work as well as within. The disclosure can relate to current incidents, events in the past, or situations that could occur in the future. An employee can also bring a claim if a new employer subjects them to a detriment because they blew the whistle in a previous employment.

2. Introduce a whistleblowing policy and adopt appropriate procedures

Only government bodies, listed companies and US companies are obliged to have a whistleblowing policy, but it is recommended that all employers encourage workers to inform them of concerns in the first instance, rather than going directly to the regulator. Employers will only gain the trust of workers if they trust that disclosures will be taken seriously and not be subjected to a detriment.

Policies should be written in plain language. Employers should consider what support they should offer those coming forward, such as counselling or appointing someone in HR to help them. Workers should be informed who they should make disclosures to and be reminded of acceptable behaviour once a disclosure is made. They should be informed what actions managers will take if whistleblowers are victimised, or if any malicious allegations are made.

Many free sources of help are available. The Whistleblowing Commission (set up by PCAW in 2013) published a Code of practice on whistleblowing and has a confidential helpline. The Department for Business, Energy and Industrial Strategy (formerly Business, Innovation & Skills) published guidance in 2015: Whistleblowing: guidance for employers and code of practice.

3. Reassure the workforce that whistleblowers will be protected

Remind workers that the law protects them from being subjected to detriment as a result of whistleblowing. Compensation for detriment can be awarded to employees and workers, together with injury to feelings awards. If employees are dismissed for whistleblowing, then this will be automatic unfair dismissal and there is no limit on compensation. There is no qualifying period of employment required before an employee can make a disclosure.

4. Respond to allegations of wrongdoing

Give workers who want to make disclosures the right to be accompanied at meetings and suggest that the details of the disclosure are written down, to avoid any misunderstandings.

The company should have a whistleblowing officer who should appoint a person/team to investigate the allegations. The officer should be picked for their independence, discretion and experience and training in investigations of this sort. The employer should also comply with the data protection requirements relating to whistleblowing and ensure those involved are aware of them.

Details of the outcome and any corrective action planned should be fed back to the whistleblower. Although sometimes it may not be possible to give full details, for instance when there is an ongoing disciplinary case against another employee. Workers who make disclosures should be given the opportunity to respond if they are not satisfied with the outcome of investigations.

5. Be prepared for the possibility of a case going to the employment tribunal

Allegations of whistleblowing are more likely to attract adverse publicity than most other kinds of claim. If the whistleblower is badly managed, this publicity will become negative, damaging any chances of future whistleblowers coming forward.

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It should be remembered that in whistleblowing cases, as in discrimination claims, a worker can bring a claim against individual employees as well as their employer. Employees can apply for “interim relief”, which puts them back on the payroll immediately pending the outcome of the tribunal. Tribunals also now have the ability to advise the relevant regulator of any breaches that the tribunal has found to occur.

Finally, companies should not overlook the management time and cost of defending a claim.