Whistleblowing – Promoting good practice for all stakeholders
By Sam Hyslop and Sonia Elmer-Soman
Not a week goes by when whistleblowing is not making headlines around the world.
Some notable exposures include:
- Identifying and prosecuting the Rotherham grooming gangs;
- Uncovering the millions lost to charities and other institutions from fraud;
- Failings surrounding the Grenfell fire;
- The warnings of Dr Li Wenlang about the Covid pandemic;
- Findings from the Donna Ockenden Independent Review which investigated 200 deaths of babies and 9 mothers within a maternity unit of a UK hospital; and
- Reports of alleged fraud, malpractice and harassment investigated in a recent BBC documentary entitled ‘Whistleblowing in the UN’.
The Charity Protect say that ‘there is a simple, cheap way to detect corruption and it lies with workers inside organisations’.
Protect suggests that 43 % of fraud is detected by tip offs and 50% of that comes from employees or, as legislation has it, – Whistle-blowers.
Whistleblowing and The Public Interest Disclosure Act 1998 (‘PIDA 1998’)
The Public Interest Disclosure Act 1998 (PIDA) came into force on 2 July 1999, inserting sections 43A to 43L and 103A into the Employment Rights Act 1996. It provides protection for workers reporting malpractices by their employers or third parties against victimisation or dismissal.
Whistleblowing occurs when a worker raises a concern about an alleged wrongdoing, including corrupt, illegal or unethical behaviours in a public or private sector organisation. (Rianna Croxford. ‘Whistleblowers: We spoke out and lost our jobs’. (15th July 2019) BBC News. (Bbc.co.uk). The disclosure must be a ‘qualifying disclosure’; meaning that it must be in the public interest and there must be belief reasonably held by the worker.
Pursuant to section 43B(1) of the Employment Rights Act 1996, Protected Disclosures include disclosures relating to criminal offences, failure to comply with legal obligations, miscarriages of justice, endangering an individual’s health and safety, damaging the environment or covering up wrongdoing.
The worker does not have to prove that the allegations disclosed are true. Provided that the worker subjectively believes that the relevant failure has occurred (or is likely to occur) and that belief is objectively reasonable, it does not matter whether the allegation turns out to be true.
The worker does however need to hold the reasonable belief that the disclosure is in the public interest. The disclosure will not be a qualifying disclosure if the complaints relates only to issues personal to the worker and does not have wider public interest implications.
In the event that a worker suffers a detriment or is dismissed as a result of making a protected disclosure, it may be open to them to pursue a claim in the employment tribunal. A dismissal arising out of a protected disclosure may be considered an automatically unfair dismissal, meaning that the worker does not need to have two continuous years’ service prior to commencing the claim.
The implications of whistleblowing on employers
A case of whistleblowing can be problematic for both an employer and the employee.
The employer must first determine whether the concern is a grievance or a protected disclosure. The distinction is an important one, as it will determine the appropriate action and policy to be followed. As set out above, a complaint or disclosure can amount to a qualifying disclosure if the worker has a reasonable belief that one of the following has occurred and is in the public interest:
- A criminal offence;
- Breach of legal obligation;
- Miscarriage of justice;
- Danger to the health and safety of an individual;
- Danger to the environment; or the deliberate concealment of information about any of the above.
For the employer, the concern raised may feel as though a bombshell has exploded at the epicentre of their organisation and navigating through the residual rubble can be fraught with complexity.
However, whistleblowing on wrongdoing can strengthen an organisation’s position. Dealing with concerns effectively can demonstrate an appetite for continuous improvement and can minimise risk of more serious breaches and harm in the future. Whistleblowing can enhance structural practices, increase productivity, encourage the best applicants and retain vital skills.
Ignoring an opportunity to fix potentially unethical, corrupt or illegal activities within the workplace can have serious consequences. The concern may cause a public relation disaster, plummeting share prices, decreased service user engagement, reputational damage and costs associated with defending lengthy legal claims. For more serious breaches, the repercussions can be far reaching, with some facing criminal sanctions, substantial fines and loss of livelihood.
In cases involving the young and vulnerable, there is a duty of care to report a concern. Imagine a scenario where a staff member failed to report because of a presiding culture of fear and because they may have seen how a former whistleblower was treated. An interesting approach to risk analysis is to use Dr Klein’s pre-mortem theory when imagining the worst possible scenario and then in determining how the organisation could avoid it.
Thus, whistleblowing (though not a particularly helpful term) can empower and inform as well as embed a culture of honesty and integrity.
How can whistleblowers avoid conflict when raising concerns
For the employee (usually the whistle-blower), it is crucial that they have access to the Company’s whistleblowing policy and that they raise the concern in accordance with its guidelines. It is essential before raising a concern that the worker consults with a legal professional who can advise them in connection with:
- Ensuring the whistleblower deals in facts, not opinions and/or emotive language.
- Understanding rights in connection with unfavourable treatment post whistleblowing.
- Avoiding potentially libellous or defamatory statements and expensive court cases.
- Using correct reporting procedures thereby avoiding any breach of data protection laws and collusion.
- Harnessing the advice of a professional before whistleblowing and, if possible, retaining professional advice during the process.
- Scrutinising settlement agreements to ensure the terms therein are not unduly onerous and that any cost settlement is reasonable and fair.
- Understanding the employment tribunal process, particularly if acting as litigant in person.
What can employers do to encourage and deal effectively with whistleblowing?
- Seek professional legal advice when preparing and understanding the organisation’s whistleblowing policy.
- Provide training to all stakeholders on their rights and obligations under the policy and ensure staff have access to it.
- Create a safe space in which staff can raise concerns openly without fear of reprisal.
- Analyse the risk in not listening to a whistleblower.
- In the interests of rigor opt for an independent, external third party to investigate concerns. Protect are calling for this with their ‘Let’s Fix It’ campaign and there is currently a bill in the House of Lords calling for an ‘Office of the Whistleblower’.
- Avoid causing further detriment to a whistleblower by means of polarising individuals, gas-lighting and any other unfavourable treatment which affects their job, reputation, physical or mental wellbeing, as this serves only to escalate matters.
- Maintain confidentiality.
Conclusion – the law is evolving
The All Party Parliamentary Group are seeking a revised definition of whistleblowing to include ‘any harmful violation of integrity and ethics’, even when not criminal or illegal. This will undoubtedly lead to more cases in the future.
Thus, organisations which are geared up to deal effectively with whistleblowing will already be ahead of the curve whatever tightening of regulations might ensure.
BTMK can help employers and employees with all employment related issues, including drafting whistleblowing policies and advising in relation to protected disclosures. If you require assistance in relation to whistleblowing, or any other employment matter, please contact our employment team on 03300 585222.