UK workers and employers are entitled to certain protections if they “make a disclosure in the public interest” regarding their employer’s or a third party’s actions. Encouraging your workforce to make any such disclosures in line with a specific procedure and reassuring them of their protected position if they do so, may be necessary and invaluable to a business. It is also important that there is clarity across the organisation of how to handle issues relating to whistleblowing. A whistleblowing policy plays a critical role in ensuring a consistent, effective and compliant approach to whistleblowing.
Whistleblowing at work
Whistleblowing is another name given to the making of a disclosure in the public interest. For example, a worker may make a disclosure about a criminal offence, a health and safety issue, a miscarriage of justice, risk of or damage to the environment, non-compliance with a legal duty or the covering up of any of these matters. The event may have happened in the past, be ongoing or be, in the whistleblower’s opinion, about to happen but the whistleblower must have a reasonable belief in what they are saying.
The wrongdoing or malpractice covered by whistleblowing must be in the public interest; personal grievances will not be classed as whistleblowing and should be dealt with according to your business’ usual grievance procedures.
What protections are granted to whistleblowers?
Protection against detrimental treatment is given to whistleblowers under the Public Interest Disclosure Act 1998 (PIDA). As a result, if a whistleblower is victimised, unfairly treated, or dismissed as a result of their disclosure, they are entitled to bring a claim in the employment tribunal. Dismissal in these circumstances may be deemed automatically unfair and there is no cap on the compensation amount awarded to the individual. (That said, employment tribunals do have the power to reduce any compensation award by up to 25% if the disclosure was considered to have been made in bad faith.)
An employer’s legal duty under PIDA is to ensure that no worker suffers detriment as a result of their making a disclosure. There are no legal obligations on an employer to have a whistleblowing policy or procedure in place, although it is good practice to do so.
Why have a whistleblowing policy?
Having a whistleblowing policy in place has several advantages for an organisation:
- Encourages openness and “speaking out” within the workplace by showing staff that the business and management will not only act in the event of wrongdoing but will also protect anyone blowing the whistle.
- Sets out the steps that will be taken following a disclosure, resulting in a transparent process and consistency.
- Publicises the manner in which staff at all levels are expected to behave.
- Encourages disclosures to be made sooner rather than later, which can result in the wrongdoing being dealt with speedily and potentially before regulatory or other action needs to be taken. In this way a whistleblowing policy can help to avoid negative publicity and reputational damage.
What to include in a whistleblowing policy?
A whistleblowing policy should be clear, understandable and relevant to your business and sector. To be effective, several points should be included:
Definition of whistleblowing with examples. Explaining what whistleblowing actually means and including some examples, which are relevant to the business, of when a disclosure should be made can help focus individuals’ minds on whether their concern is a whistleblowing issue or a personal grievance. That said, the whistleblowing policy should also make clear that not all disclosures will be major issues at their initial stages; what may seem a fairly trivial incident could still require disclosure. Make clear that workers can, if they wish, make a disclosure jointly with others.
Statement of the employer’s commitment to identifying, remedying, and eradicating any wrongdoing. Make clear that this applies to all levels of the workforce and that malpractice in the workplace will not be tolerated.
Protection of the whistleblower. A whistleblowing policy needs to encourage disclosure by staff members and so should make clear what protections are afforded to them if they make a disclosure. Emphasise that they will not suffer any detriment at all for making a disclosure and that you are actively encouraging them to come forward if they have any concerns. The whistleblowing policy should also clearly state that even if the disclosure is found to be incorrect, the individual making the disclosure will not suffer any detriment provided that they believed in what they were saying. Conversely…
Bad faith or malicious disclosures. The whistleblowing policy needs to explicitly state that any disclosure made by anyone in the organisation in bad faith or maliciously will not be tolerated and could lead to disciplinary action. Such disclosures undermine the whole tenet of a whistleblowing policy.
Whistleblowing processThe process and procedures which are to be followed by the whistleblower and the organisation in following up on the disclosure should be clearly set out. These should include:
- The person to whom the individual should initially approach, such as their line manager. That said, the process should also allow for them to speak to someone else if they do not feel comfortable approaching the first level of contact.
- The information the whistleblower will need to give. Although whistleblowers are not required to provide evidence, they should be able to explain their concern, why they are making the disclosure and any relevant background information that they have.
- Following an initial disclosure, what steps will be taken by the organisation to investigate the disclosure fully? Take care to be pragmatic when determining the process. You may wish to include several options or a hierarchy of action depending on the seriousness of the wrongdoing.
Timing. Although exact timescales should not be included, approximate timings can be included, for example, “We will endeavour to provide you with feedback within 14 days of your initial disclosure”. Keep open the possibility that such feedback may be a simple confirmation that any investigation is still ongoing.
Feedback. It is important that the whistleblower receives some feedback. The whistleblowing policy should make clear that feedback will be provided but that details of the outcome may be confidential and so may not be told to them. For example, if the wrongdoer is facing disciplinary action, then the details should not be publicised.
Prescribed persons. Ideally, an individual should approach the designated person within the organisation to make any disclosure but on occasions, this may not be possible. The whistleblowing policy should explain that in this situation, the individual can contact a third party “prescribed person”, their legal advisor or their MP. A list of prescribed persons is available here. Although the relevant contact may depend on the business or sector involved, the list includes HMRC, the Serious Fraud Office, the Financial Conduct Authority and the Health and Safety Executive. Your whistleblowing policy should be clear that disclosure to a non-prescribed person, including the media, is likely to result in the loss of the protections afforded to whistleblowers.
Confidentiality. In some cases, individuals will want to maintain their anonymity when making a disclosure. The whistleblowing policy should explain that this is possible but consider any difficulties that may arise with this. For example, feedback may not be possible if you are unaware of who made the disclosure, and the matter may not be able to be fully dealt with if the whistleblower cannot be contacted. In some situations, evidence may need to be given by the whistleblower, possibly in court. Methods of dealing with a request for anonymity could include communicating by anonymous telephone calls or using a depersonalised email address.
Right to be accompanied. In order to encourage openness and potentially reduce tension and anxiety, make clear that individuals who have made or wish to make a disclosure, can bring a third party to any meetings or discussions about the matter. This could be a friend or a trade union representative, for example.
Support and advice. Offering whistleblowers support and advice both during and after the process will encourage people to come forward and voice any concerns they have about wrongdoing and malpractice in the workplace and will also communicate to staff members that your organisation takes the situation seriously.
Settlement agreements. Whistleblowing policies should make clear that any confidentiality clause included in a settlement agreement will not be effective in a whistleblowing situation.
Anti-slavery and human trafficking. For employers with a turnover in excess of £36 million per year, a whistleblowing policy should also cover or link to the organisation’s policy on anti-slavery and human trafficking within the supply chain and explain how concerns relating to these issues should be raised.
Managing legal risk & building a culture of transparency
Putting in place a clear, pragmatic and comprehensive whistleblowing policy is certainly a step in the right direction in terms of establishing and maintaining a culture of transparency and openness within the workplace but on its own, it may not be enough.
Firstly, regular communication about the organisation’s whistleblowing policy and process is needed. All members of the workforce need to be aware of and understand the policy and why it is in place. Copies could be placed on the staff intranet and included in induction packs for new starters or in the staff handbook. Training about whistleblowing and the policy should also be given to all staff members and this should be repeated fairly regularly to ensure that all new starters receive it. One option is to include it in any induction programme.
To achieve transparency and a culture of openness, it is vital that members of management are all on board with the whistleblowing process and that they regularly communicate this to their teams. Staff members will not buy-in to the process or have the confidence to come forward with any disclosure if they do not feel that management take it seriously.
Specific training about dealing with disclosures should also be given to those individuals responsible for dealing with any whistleblowing. Taking on this role can be daunting and knowing that they have the requisite training and support to deal with any whistleblowing issues will ease any concerns that the relevant individuals may have. It may also encourage whistleblowers to speak out if they are aware that the person to whom they are addressing their concerns has the appropriate training and will ensure that a proper investigation takes place. From the organisation’s perspective, this training should also cover reputation management in the event of a disclosure.
The whistleblowing policy should be reviewed regularly to ensure that it is still workable and is in line with the organisation’s approach to wrongdoing. Publicising the review, even if informally, will help to spread the message that the organisation is committed to stopping wrongdoing and protecting those who stand up against it.
Protect, a whistleblowing charity, has an advice line for workers and plenty of information online. In addition, the gov.uk and ACAS websites have sections about whistleblowing on their websites and trade unions can also help. Inform staff members about how they can access this further information and support in relation to whistleblowing. Again, this will show that you have zero-tolerance for wrongdoing in the workplace and will support anyone wanting to make a disclosure.
It is advisable for employers to also keep records of any whistleblowing disclosures made and the feedback provided to the whistleblowers. Even after the conclusion of the matter, regularly check in on any whistleblowers to ensure that they are not suffering any adverse consequences and have no further concerns about the matter.
DavidsonMorris’ employment lawyers offer a specialist advisory service to organisations on all issues relating to whistleblowing, including the development of a whistleblowing policy. Working closely with our team of HR consultants, we offer a holistic approach, addressing both the legal and HR aspects of managing all areas of whistleblowing in the workplace. For help and advice, speak to our experts.
Whistleblowing policy FAQs
What is meant by whistleblowing policy?
A whistleblowing policy is an organisation’s written policy which explains the organisation’s approach to whistleblowing. It should encourage whistleblowers to come forward and voice any concerns they have and be used to help cultivate a culture of transparency in the workplace.
What should be included in a whistleblowing policy?
A whistleblowing policy should explain what whistleblowing is, describe the protections afforded to whistleblowers and set out the whistleblowing process. It should also explain that disclosures can be made confidentially or to prescribed persons if the individual so wishes.
What is the process of whistleblowing?
Whistleblowing is the process by which a worker can make a disclosure which is in the public interest about wrongdoing by their employer or a third party without fear of repercussions from their employer.
Why is a whistleblowing policy important?
A whistleblowing policy helps to show the employer’s commitment to transparency, encourages workers to come forward with any concerns and allows for earlier disclosure which may result in the matter being dealt with before it gets too serious or causes reputational damage.
Last updated: 13 October 2020