06 April 2018
1. Action to take when you receive communications that may be whistleblowing
Before you discuss this internally, take advice.
There are differing challenges dependant on whether the notifications are anonymous or from an identified source.
Do not communicate with the alleged wrongdoer before you have considered if your investigation will be compromised or the informant might be at risk. You have obligations as an employer to care for the health and safety of staff and to maintain confidentiality as well as to adhere to your own policies. Consult your whistleblowing policy and follow its guidance, advise your whistleblowing champion. Consider advising your compliance head.
2. Who should get the report
We recommend compliance are aware, in case they advise that legal advice should be taken on the organisation’s exposure. Otherwise, appoint an appropriate senior individual to act confidentially to investigate matters, who should be empowered to take their own legal advice if needed.
3. Who should know and who should not
It is not wise, as a first step, to let the alleged perpetrator know. It is a judgement call as to whether line managers of the victim or perpetrator and more senior personnel should be informed.
Beware of the lesson of Barclays where the Chief Executive tried to use his position to find out the identity of a whistleblower. Information barriers are wise.
4. Recognising a whistleblowing report
It needs to have the following vital ingredients.
- Come from employee or worker
- Be an oral or written disclosure
- Be facts (but not necessarily new ones) not allegations
- Be a reasonable belief that disclosure is in the public interest
It must be information tending to show one of these is taking place, has taken place or is likely to take place.
- Criminal offence
- Breach of legal obligations
- Miscarriage of justice
- Danger to the health and safety of any individual
- Danger to the environment
- Or about the deliberate concealment of information about any of the above
Personal grievances generally do not appear to be whistleblowing reports and should be distinguished and managed according to the grievance procedure. Care is needed here because breaches of personal contract terms may still be whistleblowing disclosures.
5. Preserving whistleblowers' rights
- to protect your whistleblower and their confidentiality;
- to root out any wrongdoing;
- to investigate, but discreetly, and
- a support mechanism and communication link for the whilstleblower.
6. The balancing act between the whistleblower and the accused
This is more difficult where the accused confesses to involvement. If it is a matter of gross misconduct, it may well be a disciplinary matter for the whistleblower as well. Each case will depend on its facts and needs to be deftly handled. Tailored advice is wise.
7. Pitfalls of getting it wrong
Any unconscious detriment or bias or disadvantage to the whistleblower will found an employment claim for income loss damages. That may also be a fundamental breach of contract entitling them to claim constructive and unfair dismissal.
Remember whistleblowers are vital in alerting you to wrongdoing through their diligence and that is to be encouraged.
8. Records retention
Data protection regulations including data subject access rights applies in relation to this material.
If you would like to discuss further, then please contact me.