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.
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.
It is crucial that a whistleblowing policy is appropriate for the particular organisation concerned and the policy should be tailored for the company, and not adopted off-the-peg. We recommend regular reviews of existing policies, to ensure that they are a good fit for the employer.
Particular issues to consider
It is important that the policy is easy to understand. Aside from considering whether the policy meets the business' needs, there are a number of issues to consider:
- The key starting point is whether the policy strictly reflects the legal position, or whether it makes it easier for employees to raise issues, so that all concerns are raised. Does the employer only want to consider 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.
- There is no right to be accompanied under the law but employers could choose to be more generous and allow a companion to attend any meetings to consider concerns being raised. This sends a message to staff that the employer is taking disclosures seriously and may also give employees more confidence in raising complaints.
- It is important to consider who complaints are sent to and to select personnel who employees trust and who are properly trained in dealing with whistleblowing disclosures. Employers need to consider who is best placed to receive such concerns, whether it be HR, legal or compliance, or another department.
- Employers need to think about who investigates the complaint and whether the investigation is done by the same people who received the complaint. It is crucial that those investigating have received relevant training.
- Decide on timescales for responding to the complaint, such as coming to a decision. Delay in responding to a whistleblower could be viewed as imposing a detriment on them and have legal consequences. Putting a timescale for response or the next step in investigating the concern manages the whistleblower's expectations and avoids misunderstandings arising if the whistleblower feels that they are being ignored. Additionally, having clear timescales also provides focus for the company to deal with matters promptly.
- One option might be to incorporate an arbitration procedure into any whistleblowing policy so that if an employee thinks that they have been treated unfairly they can raise matters with an arbitrator, who can then determine whether the whistleblower has grounds for their concern. Some staff might prefer to do this in a private forum rather than bring a tribunal claim.
- It is likely that during the course of an investigation, the investigators will need to access personal data about employees. Employers should consider addressing the issue in their whistleblowing policy and ensuring that investigators know about data protection issues when conducting a search for evidence.
Nicholas Robertson is a partner and Laura Pharez is an associate at global law firm Mayer Brown