‘Whistleblowing’ is when an employee reports something, to their employer or to a regulator/equivalent public enforcement body (including the police), concerning activities or behavior within the workplace that the employee believes is illegal or dangerous, and that could negatively affect others, including:
• A criminal offence
• The breach of a legal obligation
• A miscarriage of justice
• A danger to the health and safety of any individual
• Damage to the environment
• A deliberate attempt to conceal any of the above
These six categories might be historic, current or about to happen. They can relate to events within the workplace, or outside of it (but connected to employment status).
And the employee must make a disclosure about one of them. It’s not enough to merely present some information or to threaten to disclose conduct that allegedly falls within the six categories.
Unlike public listed companies, small businesses are not legally obliged to have a whistleblowing policy in place. However, every business should ideally have in place a robust whistle-blowing policy that sets out what employees and employers should do when a situation like this occurs. Having a policy in place won’t stop employees blowing the whistle or going to an external body to report their employer, but it should help to manage the situation a lot more calmly and effectively for everyone involved.
The law encourages whistleblowers wherever possible or reasonable, to make the disclosure to their employer as a first step.
Act fast and fairly – and take it seriously
Both employers and employees have a lot at stake in whistleblowing situations.
Whistleblowing takes courage. It can be very difficult for an employee to report something happening at work, particularly since they may fear the repercussions. That an employee has been motivated to whistleblow usually indicates a serious situation, where the employee’s ability to tolerate what’s happened is not outweighed by the fear of possible retaliatory or other negative consequences.
So if the employee whistleblows to someone outside of your business, you’re already in defence mode, because that external body is going to take the employee’s allegations seriously.
And if an employee whistleblows about something happening in your business, it’s not just the legal fall-out (e.g. tribunal and/or court actions) that you’ll have to deal with, it’s also the PR and reputational impact, as well as disruption to business and cultural impacts, if/when the fact of the whistleblowing becomes known by other colleagues of that employee. If a whistleblowing situation is not well managed, it has the potential to attract a lot more negative publicity than most other types of employee complaint.
You’ll naturally want to handle the situation calmly and with as little drama and external attention as possible, so that you can get to the bottom of what’s happened and determine whether the employee’s accusation is warranted.
This is where your whistleblowing policy will be very helpful in providing the guidance and process around what you and the employee should ideally do, including what is acceptable behavior once the employee has made the whistleblowing disclosure.
You’ll need to take real care in handling a situation like this. The employee must have the right to speak and to take advice. We strongly recommend getting advice from an expert at the earliest opportunity. The law protects employees who bring important information to the attention of the relevant authorities, if it is in the public interest to do so. Employers often find themselves in the unenviable position of being suspected of having done (or omitted to do) something against the interests of the whistleblowing employee, unless and until they can prove otherwise.
An employee can take their employer to a tribunal and claim compensation if they can prove they were wrongly treated or even dismissed as a result of their whistleblowing. They can also ask a court or tribunal to ensure that they are reinstated on your payroll if you’ve dismissed them.
However, the tribunal can reduce any compensation awarded to the employee by up to 25%, if they consider that the disclosure was made in ‘bad faith’.
Here’s how you can ensure your business is compliant with the whistleblowing legislation:
Clear policy and procedures
• Adopt an easy-to-understand policy and procedure for whistleblowing. Ensure every employee knows it exists and has ready access to it. The policy should be pragmatic and cover what is a disclosure and who that disclosure should ideally be made to in the first instance
• Explain (in the policy and any surrounding narrative) that you’re committed to protecting your employees’ rights in these circumstances and to preventing them from suffering any repercussions from reporting their concerns. They should understand that the legislation protects them from any unfair treatment if they do decide to blow the whistle and that they could receive compensation if they feel they haven’t been properly protected and respected by their employer during the process
• Prevention is better than cure. Keep an eye on what is happening in your business at all times. Ideally, what your business and those working within or with it will not generate grounds for blowing the whistle. If employees are behaving badly or others are raising concerns about any work-related matter, be sure to address these promptly, respectfully and thoroughly – they may well be an indication of activities which, if they escalate further, could lead to a whistleblowing relevant event
If the whistle is blown
• If any of your staff do blow the whistle, invite them to bring a witness with them to any meetings and ensure you keep a good record of everything that’s discussed. You may need later to rely on the accuracy of these notes, so you might also want to invite someone appropriate to take notes for you
• Investigate the allegation respectfully and thoroughly.
You should appoint someone to act as the representative to lead these investigations – ideally this is someone independent of the allegations, with appropriate discretion and experience to do a good job. You could appoint an external adviser, it needn’t be someone in your own management.
Make sure you comply with data protection requirements as well. You may want to take advice on these too, depending on the specific circumstances of the allegation and especially if the whistleblowing employee is hostile
• As far as you can, keep the whistleblowing employee in the loop about what you are doing and your intended next steps. You may not be able to share all the relevant details (especially if the outcome is a disciplinary action against or investigation into another employee), but you should keep him/her broadly informed, so that they can comment ultimately on whether they are satisfied with the outcome of the investigation
Don’t contaminate recruitment decisions
• Ensure that any recruitment policy and practice within your own business does not detrimentally score a candidate during your selection process for having whistleblown on a former employer
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