In this alert, Partner Emma Bartlett discusses six practical steps that in-house counsel can take to prepare for and deal with whistleblowing complaints, so that they can, in fact, become an asset to the business; encouraging early disclosure of potential whistleblowing issues should be a key priority to preserve integrity and a culture of openness.
Whistleblowing appears to have been on the rise since the start of the pandemic. Protect, the UK whistleblowing charity, reported a 20% increase in calls to their advice line during 2020, with cases in June 2020 up 74% on June 2019, with many COVID-19-related concerns. This is unsurprising given the new issues the pandemic has created to blow the whistle about including, for example, misuse of the government furlough scheme and health and safety breaches. In addition, recent cultural movements such as #BLM have raised awareness of unacceptable standards of behaviour and more people may feel empowered to speak up when they witness this, including in the workplace.
However, at the same time, remote working has created a sense of distance from the workplace which may have led to some employees feeling more ambivalent about, and therefore less likely to report, suspicious or unacceptable behaviour. As workers start to return to the physical workplace (on a “hybrid” basis or otherwise) in the coming months, we may start to see more whistleblowing disclosures and/or workers asserting whistleblowing status, which, if not handled appropriately, may have costly (both financial and reputational) implications for businesses.
In-house lawyers play a key role in ensuring that whistleblowing within their business is handled effectively (which means proportionately and sensitively, as well as robustly) and ultimately driving a corporate culture where staff feel comfortable and confident with raising concerns.
- Implement a whistleblowing policy which states your business’ commitment to a culture of openness and clearly outlines the process by which staff can report concerns about illegal, unethical, and/or unacceptable behaviour or conduct. Having a policy in place may also show that the employer has taken “adequate measures” to prevent bribery in the workplace, which is a particular requirement for financial services; consider an appropriate anti-corruption and anti-bribery policy as well. Specifically, the policy should:
- Explain and give examples of the types of information and issues that can (and should) be reported.
- Set out to whom, and how, disclosures should be made.
- Describe what will happen following a disclosure being made – i.e. how will it be investigated?
- Contain assurances that whistleblowers will not suffer any adverse consequences and that retaliation will be a disciplinary matter.
In the UK there is no strict legal requirement to have a whistleblowing policy, in contrast to the position under the EU Whistleblowing Directive which will be implemented in December 2021 and will require employers with 50+ employees to establish internal whistleblowing channels and procedures. The exception to this is the financial services sector, where Financial Conduct Authority rules require certain firms to have whistleblowing processes, as well as a whistleblowing champion with responsibility for the arrangements.
- Communicate the policy. Not only should the policy be easily and readily available (for example, clearly signposted on the company’s intranet), it is advisable to provide training or awareness courses to all staff to ensure that everyone has read and understands the policy. Senior staff and managers, who are more likely to be on the receiving end of whistleblowing complaints, should also receive specific training on how to respond to complaints, as well as on anti-retaliation measures.
- Look out for and listen to Whistleblowing disclosures are not always easy to spot; they can be hidden in grievances (amongst other more general complaints) or raised in a meeting, phone call or even a day-to-day email. It is therefore important to remain watchful for disclosures, and when you do identify them, to listen to what is being said without jumping to conclusions about the merit (or not) of the concerns. In-house lawyers have a unique position in the business as their ultimate duty is as officers of the court – brushing things under the carpet to simply appease business demands is therefore not an option for them.
Not all disclosures are protected disclosures within the remit of the statutory regime. Whether or not a whistleblower qualifies for statutory protection depends on satisfying two tests: (1) Is it a qualifying disclosure? This requires the worker to have a reasonable belief that one of six specified situations (listed in s43B of the Employment Rights Act 1996) has occurred, is occurring or is likely to occur, and that the disclosure is in the public interest; and (2) Is the qualifying disclosure protected? This broadly depends on the identity of the person to whom the disclosure is made.
- Investigate disclosures promptly, thoroughly and proportionately. Using the policy as the framework, formulate a clear strategy and expected timeline on how the investigation into the whistleblowing allegations will be conducted. Consider who will be the investigator (internal or external?), the scope of the investigation, what documents will be required and who may need to be interviewed. Also consider and keep under constant review whether any regulatory reporting requirements have been triggered.
- Maintain a dialogue with the whistleblower throughout the investigation process and keep them updated as to progress. This may sound obvious, but it is important as silence or apparent inaction may result in the whistleblower feeling ignored which may increase the likelihood that they report externally (for example, via social media channels). Thought should also be given to the potential impact of the investigation on the accused, who is/are likely to find the process highly stressful. Providing and/or signposting these individuals with/to appropriate support, particularly at the investigation stage before any factual findings have been made, should not be forgotten about.
- Follow through by considering and implementing next steps based on the outcome of the investigation. For example:
- Who needs to be informed of the outcome, and what level of information needs to be provided?
- What (if any) disciplinary actions or training may be required?
- Do any anti-retaliation measures need to be put into place, and how will these be monitored?
Encouraging early disclosure of genuine concerns should be the key aim of a whistleblowing policy. All organisations face the risk of things going wrong from time to time. Effective whistleblowing strategies are critical to uncovering unethical conduct which would impact the honesty and integrity of a business. These should be at the heart of the investigation and outcome.
If you are an employer and would like to discuss the obligations and considerations for your employees regarding whistleblowing in the workplace, you have any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner Emma Bartlett who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.