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Whistleblowing in a COVID-19 World

The onset of the pandemic meant that usual working practices for many employees changed almost overnight. As our response to the pandemic continues to evolve, there is emerging evidence of an increase in whistleblowing reports made by employees in respect of COVID-19 safety measures and possible furlough fraud.

The UK whistleblowing charity Protect produced a report in October 2020, The Best Warning System: Whistleblowing During COVID-19, which suggests that:

• 41% of employees were ignored when raising issues relating to COVID-19 safety measures and possible furlough fraud;
• 20% were dismissed after raising their concerns related to COVID-19; and
• Managers were more likely to be dismissed for raising concerns than non-managers, with 32% of managers losing their jobs compared to 21% of non-managers.

The report recommends that there should be a legal obligation imposed on employers to have whistleblowing arrangements in place, including a requirement to give whistleblowers feedback on the concerns raised. The report also suggests that a penalty regime should be implemented, whereby an organisation could be fined or sanctioned for breach of the whistleblowing standards.

Whistleblowing disclosures can be problematic, costly and time-consuming when not handled correctly by employers. There is a risk of employment litigation as well as reputational implications. Given the prevalence of whistleblowing claims, it is a good time for employers to review and refresh their current policies.

Public Interest Disclosure Act 1998 (“PIDA”)

PIDA aims to encourage the disclosure of information that is in the public interest by providing the individuals who make those disclosures with protection from retaliation. PIDA provides protection to a wide range of individuals, including:

• Employees;
• Workers, including LLP members;
• Agency and freelance workers;
• Seconded workers;
• Homeworkers;
• Trainees; and
• Former employees.

Those who make a protected disclosure are subject to two key forms of protection:

1. Protection against unfair dismissal; and
2. Protection against unlawful detriment (for example, disciplinary action, suspension, refused promotion, etc).

In order to be protected, a disclosure must be a qualifying disclosure which is made to the appropriate person or body.

A “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:

• A criminal offence
• Breach of any legal obligations
• Miscarriage of justice
• Dangers to health and safety of an individual
• Damage to the environment
• The deliberate concealing of information about any of the above

Disclosure of Information

The disclosure itself can be made in writing or be made verbally, and in a situation where the person who receives the information knows of its existence already, this does not stop it from being a disclosure. Furthermore, several communications cumulatively can amount to a disclosure, even if each individual communication does not (for example, in an email chain).

Reasonable Belief

The reasonable belief of the individual is subjective but it is also subject to an objective test of reasonableness.

Public Interest

The individual making the qualifying disclosure must reasonably believe that the disclosure is in the public interest. This test was first considered in the Court of Appeal in Chesterton Global Ltd & Anor v Nurmohamed [2017] EWCA Civ 979, in which it was held that in order for a tribunal to determine whether the disclosure was made in the public interest, it must consider:

• That the tribunal is not restricted to the reasons that were in the mind of the individual at the time of the disclosure. The individual’s reasons are not of the essence, although the lack of any credible reason might cast doubt on whether the belief was genuine.
• That the belief in the public interest need not be the predominant motive for making the disclosure, or even form part of the individual’s motivation. Importantly, PIDA uses the phrase “in the belief” which is not the same as “motivated by the belief”.
• There are no absolute rules about what is reasonable to view as being in the public interest, which will be a matter of fact in each case, but it is clear that the impact of the issue must extend beyond the individual making the disclosure. Other relevant factors will be the size and profile of the organisation involved.

Who should the disclosure be made to?

In order to be a protected disclosure, the qualifying disclosure must be made to an appropriate person or body. PIDA sets out a list of those to whom the disclosure can be made, these include but are not limited to:

• Employer
• Legal adviser
• Wider disclosure to an external body
• Person believed to be responsible for the relevant failure.

Whistleblowing during the pandemic, and beyond

Whistleblowing is an important topic that should be a key part of every organisation’s risk management agenda. The idea of whistleblowing can have negative connotations of playground snitches or telltales. However, empowering staff to raise concerns is a vital risk management tool and a robust whistleblowing framework can have positive implications beyond just identifying wrongdoing. If, as an organisation, you can create a culture of compliance where people feel comfortable raising their concerns, they will also feel comfortable speaking up about ideas and innovation. This can have a positive impact on employee management and productivity and the general wellbeing of the workforce.

Whilst employers are not required by law to have a whistleblowing policy, it is good practice to do so, as prevention is better than cure. The policy itself should communicate the message to employees that, as an organisation, you are committed to addressing concerns and that you seek to promote a culture of speaking up. Practical points for employers to consider include:

• Have a clear policy in place and frame it positively; the policy should address what is covered and not covered by its scope, how and to whom concerns should be raised, and what would happen following a disclosure being made.
• Appoint a designated individual or team who are trained in the policy and relevant legislation, and make those individuals available outside usual reporting lines, as it might be that people do not feel comfortable raising their concerns to their line manager directly.
• Separate any wrongdoing from any personal grievances or complaints.
• In terms of investigating any disclosure made, be very clear from the outset as to the scope of the investigation and make sure it is proportionate to the disclosure made.
• Document any decision making and rationale by way of a clear and accurate paper trail.

During these strange times where many employees are working remotely, making it harder to spot compliance issues, fostering a culture of openness and transparency is more important than ever.

We have vast experience in litigating discrimination and whistleblowing claims, where necessary, and have been involved in leading whistleblowing cases, including on behalf of the intervener in the Supreme Court in Clyde & Co LLP & Anor v Bates van Winklehof, Chesterton Global Ltd & Anor v Nurmohamed and Day v Lewisham & Greenwich NHS Trust & Health Education EnglandTo discuss any questions arising from this alert or for specific legal advice on particular circumstances, please contact our Partner Beth Hale, who specialises in employment and partnership law issues for multinational employers, senior executives, partnerships and partners.