Whistleblowing: A whistle-stop tour
Kim Hayton , April 27, 2017
Barclays' chief exec attempted to find the author of anonymous letters, highlighting the importance of whistleblowing policies
Following the recent announcement of Barclays' chief executive Jes Staley’s attempt to track down the author of anonymous letters, whistleblowing charities and law firms have called for companies to offer more protection to workers who flag up internal problems. Staley is being investigated by financial regulators and faces a significant cut to his pay after admitting trying to unmask a whistleblower who made allegations about a long-term associate he had brought to the bank.
While there are strict regulations in the financial services industry about encouraging and protecting whistleblowers, Public Concern at Work , a charity for whistleblowers, said there is “much work to be done” while GoodCorporation said the Barclays saga would be a “real test” for the Financial Conduct Authority and the Bank of England’s Prudential Regulation Authority.
Why whistleblowing should be company policy
Whistleblowing – ‘making a disclosure in the public interest' – is when an employee reports suspected wrongdoing in the workplace. While current UK legislation does not require employers to have a whistleblowing policy, there are good reasons to have one:
- Implementing a policy encourages a culture where concerns are reported early, which makes it easier for employers to address concerns and potentially avoid serious regulatory breaches, reputational damage or external disclosures.
- An employee can report things that they feel aren’t right, are illegal, or if they truly believe that someone at work is neglecting their duties; including damage to the environment, a criminal offence, the company not obeying the law (like not having the right insurance), covering up wrongdoing, or someone’s health and safety is in danger.
- A policy should also go some way to reducing the likelihood of claims. It sends a message that the employer takes whistleblowing seriously and places importance on identifying and remedying wrongdoing.
- It also reinforces the standards expected of staff and provides a clear process and procedure to follow.
Tailoring a policy to your organisation
It is crucial that a whistleblowing policy is appropriate for the organisation concerned and is tailored for the company. Aside from whether the policy meets your business' needs, consider:
- Does the policy strictly reflect the legal position, making it easier for employees to raise issues so that all concerns are raised, or only those concerns that qualify for statutory protection? There is no right or wrong approach and it will depend on the message the employer wishes to convey.
- Whether you will allow a companion to attend any meetings to consider concerns being raised. While not required under law, this sends a message that the employer is taking disclosures seriously and may give employees more confidence in raising complaints.
- Who complaints are sent to. Select somebody that employees trust and who is properly trained in dealing with whistleblowing disclosures, be this HR, legal or compliance, or another department.
- Who investigates the complaint and whether this is done by the same people who received the complaint. It is crucial that those investigating have received relevant training.
- Putting a timescale for investigating the concern. This manages the whistleblower's expectations and avoids misunderstandings. Additionally, having clear timescales provides focus to deal with matters promptly.
- Incorporating an arbitration procedure into any whistleblowing policy. That way an employee who thinks that they have been treated unfairly can raise matters with an arbitrator, who can then determine whether the whistleblower has grounds for concern.
- During the course of an investigation it is likely investigators will need to access personal data about employees. Employers should consider addressing the issue in their whistleblowing policy and ensure that investigators know about data protection issues when compiling evidence.
Good whistleblowing arrangements are a vital component of well-run organisations. Whatever the issue or concern may be, providing a framework through which staff can confidently and confidentially raise concerns is fundamental. While employees should check their company handbook or contract for whistleblowing procedures, in general:
- Employees, including agency workers,people that are training with an employer but not employed, and self-employed workers if supervised or working off-site, cannot be dismissed for whistleblowing if they are making a disclosure in good faith.
- If an employee feels unable to tell their employer directly they should contact ‘a prescribed person or body. However, this route should only be taken if the employee feels their employer will cover it up, treat them unfairly if they complain, or not do anything about it.
- If employees are dismissed for whistleblowing they can claim unfair dismissal and gain protection if they truly believe that what they are reporting is true. Workers are not protected from dismissal if they break the law when they report something, or they found out about the wrongdoing when someone wanted legal advice e.g. if they are a solicitor.
- Similarly, workers who aren’t employees cannot claim unfair dismissal, however, they are protected and can claim ‘detrimental treatment’.
- If an employee is dismissed for whistleblowing they can apply to an Employment Tribunal who may rule that the employee should be reinstated or paid compensation if the dismissal is deemed to be unfair.
Whistleblowing policies are now accepted across both the private and public sectors as an essential element of risk management.
Kim Hayton is HR director at FDR Law