Whistleblowing is a term we hear more and more frequently. If you are an employer, there is a chance that you may be involved in the whistleblowing process at some point. For example, you may be approached by an employee who has observed something untoward, and wishes to report it formally. It is important, therefore, to be prepared in case this happens.
Whistleblowing and treatment of whistle-blowers is a large and complex subject, with legal implications. In this article, we will examine just some of the many aspects of whistleblowing.
What is whistleblowing?
Whistleblowing is when an employee reports a certain type of incident. The incident is usually, but not always, observed at work. In order to be classified as whistleblowing, the disclosure of the incident must be made in the interests of the public. The incident or wrongdoing must have been having some kind of impact on other people. It must not just impact the whistle-blower. The concerns raised can be past events, current events or even events likely to happen in the immediate future.
Whistle-blowers and the law
Whistle-blowers are actually protected by law. The act of whistleblowing should not result in unfair treatment or dismissal. The law’s protection is extended to a wide range of people, and even confidentiality clauses (or gagging clauses) in a person’s contract do not apply when it comes to blowing the whistle.
Protection extends to employees in general, plus trainees, agency workers and people in Limited Liability Partnerships. Citizen’s Advice has some useful information about fair treatment of whistle-blowers.
Which reports are considered to be whistleblowing?
Reporting any of the following actions is considered to be whistleblowing, and the person making the report is then protected by the law:
Criminal actions such as fraud, wrongdoing or the covering-up of wrongdoing. Lawbreaking, such as businesses without the correct level of insurance or endangering the health and safety of one or more individuals. Risks of damage to the environment, or actual environmental damage, and finally, miscarriages of justice.
Grievances by individuals such as discrimination, harassment or bullying are not considered to be whistleblowing, unless the public interest is served by the reporting of the issue.
Who can a whistle-blower report to?
An employee can report to their employer, if they feel empowered to do so. If you are an employer and you are approached by an employee who wishes to make a report that could be classified as whistleblowing, you must proceed with care – see below.
If the whistleblowing is related to their own employer, an employee is most likely to want to report it to someone else. There are several options available – including getting legal advice from a lawyer, or telling a ‘prescribed person’ or ‘prescribed body’. The choice of a prescribed person or body depends on the subject area. For example, someone witnessing an incident involving a care home would need to choose the Care Quality Commission as their prescribed body. Further information on prescribed bodies (and whistleblowing in general) is available from the Gov.UK website.
Whistle-blowers may also decide to go to the media in order to make the issue as public as possible, but there is a risk that doing so will compromise the protection offered by the law.
What should an employer do?
If you are an employer, it is in your own interests to have a formal policy for dealing with whistle-blowers. The policy should contain information on what an employee can expect to happen if they blow the whistle to you. It should also be made clear what your own actions will be in the event of whistleblowing. You could potentially be approached at any time, and you don’t want to be caught unprepared if it does.
You should always take a whistle-blower seriously. It can take a great deal of courage to blow the whistle, so listen carefully to the concerns of the person making the report. Detailed record-keeping is crucial. You will need a reliable record of what was discussed and when, what action (if any) was agreed, and what action was actually taken.
Confidentiality of the whistle-blower and their concerns is also of paramount importance. Above all, remember that whistleblowing is covered by the law, and you may need to be able to prove that you have treated the whistleblowing employee fairly. As with all issues covered by the law, it’s a good idea to bring in some professional help. You need to be prepared in case one of your employees decides to approach you with a report at any time in the future.
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