It is essential that employees know how to raise whistleblowing concerns within your business so that you can resolve any wrongdoing and avoid the risk of whistleblowing claims.
Below we explain what whistleblowing is, your obligations as an employer and how you should approach whistleblowing in your business.
What is ‘whistleblowing’?
‘Whistleblowing’ is when an individual brings to their employer’s attention information regarding wrongdoing within the organisation.
UK employment law protects workers who make a ‘protected disclosure’ against any resulting detriment or dismissal.
Who is protected by whistleblowing legislation?
The definition of ‘worker’ for whistleblowing purposes is wider than the definition in employment law generally.
It includes employees, trainees, agency workers and members of limited liability partnerships.
There is no length of service requirement for bringing a whistleblowing claim; therefore, all workers are protected from the start of their employment.
What is a ‘protected disclosure’
A worker makes a ‘protected disclosure’ if they disclose information which they reasonably believe is in the public interest to a specified recipient regarding:
- a criminal offence
- failure to comply with a legal obligation
- a miscarriage of justice
- an endangerment of health and safety
- damage to the environment
- concealment of information relating to any of the above issues
An employee will be able to bring a claim of automatic unfair dismissal if they can show that the main reason for their dismissal was because they made a protected disclosure.
A worker can also bring a claim if they are subjected to a detriment, such as being punished, because of their protected disclosure.
An employer may be liable to compensate a worker who has suffered a detriment from a colleague in the workplace even if the employer was unaware of the detriment.
If a claim is successful, the tribunal will grant an award of damages that it considers to be just and equitable in the circumstances.
There is no statutory cap on the amount of damages that can be awarded for whistleblowing claims, so this can be a significant cost, particularly in cases where compensation for injury to feelings is awarded.
However, the tribunal will deduct 25% from the worker’s damages if the disclosure was not made in good faith.
The importance of having a whistleblowing policy and procedure
Whistleblowing legislation is limited to protecting whistleblowers from detriment or dismissal resulting from their protected disclosure.
It does not place a positive obligation on employers to actively encourage whistleblowing within their organisation or require that they investigate concerns in any particular way.
There is no legal requirement for employers to have a whistleblowing policy and procedure, but it is best practice to have one in place as it brings the following benefits:
- Compliance with whistleblowing legislation
Having an effective policy and procedure for your business will ensure that management apply a consistent approach towards whistleblowing concerns that is compliant with the legislation.
This will reduce the likelihood of workers bringing whistleblowing claims, saving the business from the cost of litigation.
- Internal control and management
If employees are made aware of your whistleblowing policy and procedure, they will feel more confident in raising their concerns internally.
Research has shown that employees are the most aware of malpractice within the organisation, therefore, their disclosures offer you the opportunity to deal with such issues privately before they escalate.
- Reduced risk of external disclosures
Creating an open and transparent work culture in support of whistleblowing will make employees less likely to report wrongdoing to a third party, such as a regulator or the press.
This is important because if a disclosure is made public, it can create further problems, such as reputational issues for your business.
If an employee makes an external disclosure instead of reporting it internally in line with your whistleblowing procedure, you will be able to argue that this is unreasonable and not a protected disclosure.
- Defence to criminal liability
If your business is facing criminal liability for bribery or tax evasion committed by somebody within your business, having a whistleblowing policy and procedure in place will act as a defence.
This is because the policy will show that your business has adequate procedures to protect against such offences and encourage reporting, and therefore it is not liable.
It is important that the whistleblowing policy and procedure is made accessible to everyone.
If your business recognises a trade union, they should be involved in the process of creating and implementing your whistleblowing policy, as trade union support will encourage employees to make disclosures in line with the policy.
If you do not have a recognised trade union, you could consult employee representatives instead.
Format of the policy
You do not necessarily need to have a stand-alone ‘Whistleblowing Policy’, it could be included within a wider ethics policy.
However, if it is contained elsewhere, you should make its location clear and accessible to employees so that they can easily obtain whistleblowing information and advice.
In particular, the distinction between a whistleblowing complaint and a personal grievance should be explained clearly so that employees raise issues through the appropriate channel.
What should a whistleblowing policy and procedure cover?
Aims and objectives
The main aims of the whistleblowing policy and procedure should be set out.
For most employers, the aim will be to enable employees to raise whistleblowing concerns internally and to deal with such concerns effectively and fairly.
The objectives of the whistleblowing policy and procedure will be to provide an appropriate structure so that employees feel confident in making disclosures without fear of reprisal.
As explained above, whistleblowing protection only applies to protected disclosures that are made in the public interest to a specified recipient.
However, you should avoid using the statutory wording as much as possible as this may confuse employees and put them off whistleblowing.
Your whistleblowing policy and procedure should state that employees who have genuine concerns about any of the qualifying disclosure issues should report their concerns under the policy.
The issues should be listed clearly, and you could provide examples for each category so that employees know when they would apply.
It is common for employers to encourage the reporting of other issues which do not fall under the whistleblowing legislation, such as general unethical conduct.
Please note that the regulators of certain sectors implement their own specific whistleblowing rules that must be followed.
For example, the Financial Conduct Authority has imposed whistleblowing rules for certain financial service firms and the NHS has its own whistleblowing policy that should be used by all associated organisations.
Therefore, you should check whether your business is subject to any sector-specific whistleblowing rules and ensure that these are incorporated into your own policy.
You should outline your expectations of employees regarding whistleblowing, i.e. that you expect and encourage employees to follow the whistleblowing procedure if they reasonably suspect wrongdoing in the workplace.
It is possible for employers to place employees under a contractual duty to report wrongdoing, but this can in turn create more problems.
It can cause employees to be overcautious and waste time by reporting trivial concerns, and you may be obliged to investigate if an individual discloses information to which other employees had access but did nothing.
It is important to note here that an employee’s motive for whistleblowing is irrelevant so your policy should state that the focus will be on the information disclosed and not the reasons behind the disclosure.
Although a tribunal can reduce compensation if an employee discloses in bad faith, it is best not to mention this in your policy as it may prevent genuine concerns from being raised.
Instead, you should state that employees will only face disciplinary action if they maliciously disclose false information.
Your whistleblowing policy and procedure should make it clear that employees who make disclosures will be supported and protected regardless of the outcome.
You should state that anyone who threatens or treats a whistleblower badly will face disciplinary action and potentially dismissal if the victimisation amounts to gross misconduct.
This will help to give employees the confidence to come forward if they have concerns, knowing that they won’t be subjected to detrimental treatment.
Your whistleblowing procedure should outline how disclosures will be investigated, stating that the whistleblower should simply provide the relevant information and leave it to management to deal with.
The investigation procedure for whistleblowing complaints will be discussed in detail below.
Your whistleblowing policy and procedure should set out the employee’s right to appeal if they are not satisfied with how you have dealt with their concern.
They should be able to raise their concerns with a more senior manager and granting them this opportunity will reduce the chances of them going to a third party instead.
Dealing with whistleblowing concerns
Who will deal with whistleblowing concerns?
It is common for the first point of contact to be the employee’s line manager.
However, alternative contacts should be provided, such as a more senior manager or director, for employees who would prefer not to disclose to their line manager.
Employees should not be directed to make whistleblowing complaints to HR, as their role is restricted to creating and implementing the organisation’s whistleblowing policy and conducting resultant disciplinary proceedings.
Inevitably, you will want to strongly encourage employees to raise whistleblowing concerns internally, but you should accept that external disclosure may be necessary as a last resort in some circumstances.
You could encourage employees in this case to go to a regulator or a charity such as Protect, to obtain advice.
However, you can strongly assert that alerting the press or posting concerns online will virtually always be unjustified and inappropriate and will not give them whistleblowing protection.
How should whistleblowing concerns be made?
It will be easier for whistleblowing concerns to be thoroughly investigated if they are made in writing, but you should try to be as inclusive as possible.
You could assist employees in raising their concerns by providing a basic form which requests all the information you will need such as the whistleblower’s contact details, the details of the concern including supporting evidence and individuals involved, and how the whistleblower would like the issue to be resolved.
Keeping a record
You should maintain a record of any whistleblowing complaints you receive, so that you can monitor the effectiveness of your whistleblowing policy and identify any trends.
The type of information you should record includes:
- The date of concerns
- The nature of the suspected wrongdoing and the department it relates to
- Any action taken in response
Data regarding whistleblowing should be recorded in accordance with your data protection policy.
In particular, the information should be kept securely, and it should not be stored for longer than is necessary.
Confidentiality and anonymity
A common reason why employees are anxious to raise whistleblowing concerns is that they fear reprisal.
Therefore, you should maintain a whistleblower’s confidentiality as far as possible, although obviously you cannot guarantee complete confidentiality.
In some cases, you will need to disclose the whistleblower’s identity to those involved in the investigation or it may be obvious who disclosed the information.
You should reassure employees in your whistleblowing policy that complaints will be dealt with confidentially as much as possible and that unnecessary and inappropriate breaches of confidentiality may result in disciplinary action.
Inevitably, anonymous whistleblowing concerns are extremely hard to investigate properly, as further information cannot be obtained, and it is difficult to assess credibility.
It will also be difficult for you to provide protection to a whistleblower and ensure that they do not suffer any reprisals if you do not know their identity.
Therefore, you can discourage anonymous whistleblowing but remember it is better than an employee staying silent.
You should never ignore anonymous disclosures as they could reveal serious wrongdoing that needs addressing.
Investigating whistleblowing concerns
Whistleblowing concerns should be screened before a proper investigation is initiated to check credibility and determine what kind of investigation, if any, is appropriate in the circumstances.
It may be possible to resolve some whistleblowing concerns informally, especially if they result from miscommunication and there is no actual wrongdoing.
If a preliminary investigation indicates serious wrongdoing, you may need to refer the matter to an external regulatory body or the police.
Although the time frame for investigations will differ with every case, you should try to investigate and resolve the concern as quickly as possible.
Updating the whistleblower
You should make it clear to the whistleblower that they will not be involved in the investigatory process, unless you need to obtain further information or evidence.
However, you should inform them of the investigation and provide them with the contact details of the person in charge who they can contact for information and advice.
Once the investigation is completed, you should provide the whistleblower with feedback about the outcome, without disclosing any confidential information.
This will show that you appreciate their disclosure and have taken their concerns seriously.
If you do not inform the whistleblower of the outcome, they may think that you have not dealt with their concern and feel the need to go to a third party.
Informing the wrongdoer
Usually, it is appropriate to inform an individual when an allegation is made against them.
However, the alleged wrongdoer should not be informed until the whistleblowing concern has been screened and verified, to avoid causing them unnecessary stress.
In some cases, it may be necessary to suspend the alleged wrongdoer so that a thorough investigation can be carried out and to ensure that important evidence is not destroyed.
Providing training to staff will ensure that employees know how to raise whistleblowing concerns in line with your policy and that they understand the protection that they will be afforded.
It is also important for your business, in providing a defence to whistleblowing claims.
If a whistleblower brings a claim because a colleague subjected them to a detriment, you may be able to defend the claim on the basis that you took all reasonable steps to prevent the detriment by training staff on whistleblowing protection.
Recipients of whistleblowing concerns, such as line managers, should receive additional training on how to deal with concerns, the support and protection they should provide and the importance of confidentiality.
Those responsible for conducting investigations should also be trained on issues such as confidentiality.
Whistleblowing is a useful way for you to be informed of and resolve wrongdoing in your business.
You should create and implement a comprehensive whistleblowing policy and procedure so that everyone knows:
- How whistleblowing concerns should be raised
- The support and protection that whistleblowers will be afforded
- How whistleblowing concerns will be investigated and resolved
The policy should be easily accessible and be visibly supported by management, as this will help to create an open culture in which employees feel confident raising whistleblowing concerns internally.
Providing training can also encourage employees to raise concerns internally and ensure that concerns are dealt with properly, reducing the risks associated with external disclosures.