The Whistleblowing Wraith – a Halloween Horror

A shudder down your spine as darkness falls, it is only at night at which she calls.
The hairs on the back of your neck stand straight, as she rises from the depths full of hate.
A whistle that seems so beautiful and inviting, is ultimately, deceptive, dangerous and frightening.
Awaiting a deadly attack which fills you with fear, deep down you know she will soon appear.
You must be brave, stand before her and yell, before this wraith drags you into hell. 

A short reminder of the horrors that whistleblowing can bring, do not ignore them, as like the wraith, it can be devastating.

As Winter draws closer, we look at the nightmare that HR could be facing if it fails to deal properly with a whistleblowing claim. In order for HR to effectively manage the situation, it must be able to recognise that the individual is a whistleblower and therefore what to look out for and to have proper procedures in place once the whistleblowing has been identified.  Not all whistleblowing is obvious!

What is whistleblowing?

Let’s first look at what is a whistleblowing.  This is when an employee reports knowledge of wrongdoing. For this “disclosure” to fall within the scope of the whistleblowing legislation (i.e. “protected disclosure”), they must reasonably believe, firstly, that they are operating in the public interest, and secondly, that the wrongdoing falls into one or more of the following categories: criminal acts, breaking the law, putting someone’s health and safety in danger, causing environmental harm, and concealing the wrongdoing.

What is in the public interest is not defined but tribunals will take into account factors such as the number of individuals affected, the type and extent of the misconduct, and the identity of the perpetrator.

Who is protected?

Whistleblowing laws in the UK safeguard “workers” from suffering a detriment or dismissal by their employer as a result of making a “protected disclosure” of information. A “worker” includes various categories of individuals such as employees, homeworkers, casual workers, temporary or agency workers, non-employees undergoing training or work experience as part of a training course, limited liability partnership members, judges, and other office holders.  The protection is wide-ranging.

If you are unsure whether the individual is protected under the legislation, please contact a member of our employment team to find out.

How to recognise whistleblowing?

Any form of recorded information can amount to whistleblowing.  It can be verbal or in writing.  It could be flagged in a meeting, presentation, email, on work forms, a Teams message or in a conversation. From the whistleblower’s perspective, clearly it will be easier to prove if the disclosure has be recorded in writing.  But whilst having a whistleblowing policy and encouraging everyone to use it if they have something to report can assist, an employee’s failure to use the policy to make their disclosure does not negate the disclosure or the company’s obligation to deal with it.   Hence the need for vigilance from both managers and HR.

The individual has to disclose information by providing facts to the company, not simply voicing a concern or making an allegation.  It is possible for several communications that may appear to be raising concerns, taken together, could be a disclosure of facts.  It is necessary to be able to recognise disclosures buried in this way, by serial complainants for example.

The harm or loss that is suffered must flow from the whistleblowing e.g. the whistleblower has suffered a detriment or been dismissed as a result of disclosing the wrongdoing to the employer.

It is important to remember that whistleblowing is significantly different to a grievance. A grievance concerns complaints an employee has regarding their personal situation.  The process for dealing with a grievance will be different and there will be different safeguards and confidentiality provisions relating to that process. Whistleblowing procedures usually involve an employee reporting a wider wrongdoing by the company, although it may be necessary to manage an overlap if a personal grievance has wider implications involving health and safety or sexual or racial harassment complaints.

What should HR/employers be doing?

Employers need to make sure they put in place effective policies and procedures that encourage staff members to report misconduct within the company.

This can be achieved by:

• establishing strong and easily accessible policies and procedures for whistleblowers to limit the scope for “hidden” complaints that get missed
• facilitating regular and effective training on the policies and procedures
• remaining vigilant to reports of wrongdoing, no matter how informal and training managers to be alert to the same
• conducting a comprehensive and unbiased investigation of the issues
• safeguarding the individual who reported the incident from detriment or repercussions
• preserving documentations of the decisions and actions taken at the time
• seeking legal advice early on
• resolving the matter in a timely manner

By implementing the aforementioned measures, companies may protect themselves from all whistleblowing claims and preserve a positive, productive work atmosphere.

A review of the current whistleblowing framework

The government is currently in the process of reviewing the whistleblowing framework. This review aims to determine how well the framework has accomplished its initial goals of protecting workers when making disclosures of wrongdoing.  It will identify problems with the framework and provide employers up-to-date guidance on how to respond to such disclosures.  The review is scheduled to conclude at the end of 2023.

For more information on whistleblowing claims or anything else employment relates, please feel free to contact a member of whistleblowing lawyers.