It has been widely reported in the press that the number of whistleblowing complaints has increased since the Covid-19 pandemic began. As a timely reminder, Danielle Crawford considers the practical steps that can be taken to handle whistleblowing complaints in the new Covid-conscious world.
In the first instance, it is important to carefully consider any complaint raised by a worker (whether informally or formally) to establish whether it is (or could be) a whistleblowing complaint, a statement expressing an opinion, a personal grievance, a combination of these, or an issue that is being brought to the employer’s attention but which can be easily addressed without the need for a formal process.
It is not always obvious whether a complaint amounts to a protected disclosure for the purpose of the whistleblowing legislation. In addition, concerns that are raised informally or verbally and which are not followed up can sometimes be forgotten or dismissed as trivial until issues and claims arise further down the line. Therefore, in order to minimise the risk of uncertainty and misunderstandings, there should be clear communication with the person raising the concern(s). It is also prudent to keep records of any informal conversations, notes of actions taken to address the concerns (however minor) and subsequent discussions with the worker. It is also worth following up with the worker and directing them to the relevant policy should they not be satisfied with the outcome.
Is it Whistleblowing?
In order for a disclosure to be protected under the whistleblowing legislation it must be information disclosed which the worker reasonably believes shows that any of the following has occurred, is occurring or is likely to occur:
- A criminal offence
- A breach of any legal obligation
- A miscarriage of justice
- Danger to the health and safety of any individual
- Damage to the environment
- Deliberate concealment of any of the above.
The first step is to therefore establish whether there has been a disclosure of information. Does the disclosure actually convey facts? For example, if a worker verbally reported that their manager made them work throughout the period they were furloughed, this would be a disclosure of information.
The next step is to establish whether the disclosure could fall within any of the six categories set out in the legislation. Using the above example, the worker could rely on the fact that they reasonably believe that being made to work whilst they are furloughed is a criminal offence and/or a breach of legal obligation. In the employment context, a breach of any legal obligation or danger to the health and safety of any individual tend to be common types of whistleblowing complaint (especially in view of the current focus on health and safety).
Finally, is the disclosure in the public interest? In reality, this is a relatively low hurdle for the worker to establish even if the complaint they have raised serves their own interest as well as others’ or involves a breach of their own contract. Again using the above example, although the disclosure is related to the individual’s own circumstances, it would be easy to argue that the disclosure is also in the public interest since it involves the defrauding a government body.
Where are the policies and procedures?
It is good practice for all employers to have comprehensive and tailored whistleblowing policies and procedures in place so that both the worker raising the concern and the recipient of the concern are clear about the process and any further reporting obligations which may be triggered. Further, it is a good idea to regularly review and adapt whistleblowing policies and procedures, especially in view of the present Covid-19 environment and the significant increase in remote working practices and meetings.
All staff should know where to find the whistleblowing policies and procedures and who to contact if they have any queries. They should also have confidence that a fair process will be followed and that they will not be stigmatised or victimised for raising their concerns.
Employers may also wish to implement policies and procedures which are wider and more flexible than the statutory whistleblowing requirements in order to encourage an open culture of reporting wrongdoing or suspected wrongdoing at an early stage, especially if they are subject to additional regulatory obligations.
Individuals in managerial or HR positions should be provided with regular and specific training on how to handle whistleblowing complaints with reference to the employer’s own whistleblowing policy and procedures as well as the relevant legislation. It is also important to ensure that all managers and HR are made aware of the necessity to protect whistleblowers from any detrimental treatment arising from the protected disclosures they have made.
Who can a protected disclosure be made to?
It is worth having clear instructions confirming who whistleblowing disclosures should be made to within the organisation so that the concerns can be dealt with appropriately by an experienced complaints handler.
It is also worth noting that whilst whistleblowing concerns are ordinarily raised internally in the first instance, workers can make disclosures externally to certain prescribed persons (approved by Parliament) if the person making disclosure believes it is within the prescribed persons remit and that the information is substantially true. For example, a worker may report a dangerous work environment to the Health and Safety Executive.
Clear and regular communications with the workforce and instilling confidence in the way concerns are handled are key to ensuring that employers are not exposed to avoidable risks. If workers believe their concerns are being taken seriously from the outset and are kept up to date about the actions taken to address their concerns, disputes can be averted at an early stage. Care must also be taken to ensure that workers do not suffer any detrimental treatment as a result of raising their concerns.