In this instalment of our 'Breaking Down the Handbook' series, we look at whistleblowing policies, why they are needed, what they should contain and what traps employers need to avoid.
What does whistleblowing mean?
The term whistleblowing refers to someone who reports or exposes wrongdoing either within an organisation or to an external body, such as a regulator, or to the press.
Following a number of disasters in the 80s and early 90s, such as the Clapham Rail disaster, the sinking of the Zeebrugge ferry and the financial scandals at BCCI, it was recognised that many organisations had a culture which discouraged the reporting of wrongdoing and that more was needed to protect those who blew the whistle from having their careers damaged or destroyed. The Public Interest Disclosure Act (PIDA) came into force in 1998 and provides protection for workers (including employees) who blow the whistle on wrongdoing at work. Workers have a right not to be dismissed or suffer any detriment at work as a result of making a protected disclosure.
Why have a whistleblowing policy?
While PIDA does not require employers to implement a whistleblowing policy, it is generally accepted that employers should encourage effective internal whistleblowing. A well-constructed policy can help achieve this, and in fact, can have benefits for the business such as:
- Making sure workers raise concerns internally so avoiding workers taking their concerns outside of the organisation which could damage reputation and brand;
- Dealing with concerns at an early stage should make them easier to address and avoid potentially serious regulatory breaches or damage to reputation;
- Demonstrating support of whistleblowers can help reduce the risk that they will be dismissed or suffer a detriment which could involve the organisation in costly litigation;
- Avoiding criminal liability for bribery or for facilitating tax evasion.
What should a whistleblowing policy contain?
The policy should:
- Convey the seriousness and importance that the employer attaches to identifying and remedying wrongdoing;
- Encourage workers to raise concerns internally as soon as possible and to give them the confidence to do so;
- Remind workers of the standards of behaviour expected of them;
- Explain who to approach with a concern, ensuring that they are not the person, management level or part of the organisation to which the concern relates;
- Outline the procedures for investigating the concern and what steps might be taken if wrongdoing is uncovered;
- Make it clear what will happen to those who victimise genuine whistleblowers or abuse the system by making malicious allegations;
- Make clear that the policy will apply to workers not just employees, so it will apply to agency workers and some self-employed contractors. Although contractors' or sub-contractors' staff working at an employer's premises are not likely to be covered by the definition of worker, there are good reasons to encourage such individuals to report any wrongdoing using the whistleblowing policy.
Can whistleblowing concerns be dealt with under the grievance procedure instead?
It is generally better to have a separate whistleblowing policy rather than dealing with whistleblowing concerns under a grievance procedure. Grievance procedures are intended to deal with a situation affecting the complainant personally rather than wrongdoing of a more general nature and may not have the necessary protections in place to preserve confidentiality (which may often be needed in whistleblowing cases, especially at the preliminary stages, to encourage workers to come forward with their concerns).
A nod to GDPR
A disclosure under a whistleblowing policy is likely to identify an individual or individuals or may lead to an investigation in which it is necessary to identify individuals. It will therefore involve the processing of personal data under data protection legislation. Information about the alleged commission of an offence by any individual will also amount to particularly sensitive information. Employers should therefore ensure that all such personal data is processed fairly and lawfully, and processing must not take place unless there is a lawful basis for doing so. Setting out the lawful basis and what will happen to such data in a whistleblowing policy is recommended.