Whistle while you work: how to enable and deal with whistleblowers in your organisation

Written on 29 Sep 2016

Who are today’s whistleblowers?

Empowering workers who discover genuine wrongdoing within your organisation to tell you about it makes sense. Not only can there be personal liability for those who subject a whistleblower to detriment, and vicarious liability for their employer, but the silencing of whistleblowers can be headline news and expose your business to considerable financial liability. Think of Raj Mattu, the Coventry heart doctor who blew the whistle on dangerous overcrowding and was awarded £1.22m in compensation after he was unfairly dismissed by the hospital, with the NHS trust racking up a further £6m plus in legal fees.

Genuine or fake…

Of course, not all whistleblowers are driven by an altruistic motivation to expose corruption or malpractice.

Blowing the whistle is also an attractive option for some workers seeking personal financial gain or harbouring a grudge against their employer. Whistleblowers have the right not to be dismissed or subjected to a detriment for making a disclosure from the start of their employment and any dismissal
resulting from their blowing the whistle will be automatically unfair and attract unlimited compensation. Herein lies the dilemma for an employer: how to support and encourage genuine whistleblowers to come forward, but prevent abuse of a supportive culture by an opportunist bad-apple.

An accident waiting to happen…

The Public Interest Disclosure Act 1998 (PIDA) was introduced following a series of high profile disasters and financial scandals in the 1980s and 1990s, including the sinking of the Zeebrugge ferry and the collapse of Barings Bank. The common factor in all these incidents was that workers had been aware of either a health and safety risk or a risk of financial harm, but were too scared to raise their concerns or didn’t know the right way to raise them. If there is an ‘accident waiting to happen’ in your business, you would want to know about it and for workers to come forward. This was certainly the purpose of the introduction of PIDA.

Unfortunately, following the introduction of PIDA, despite the clear public interest aim of the legislation, it became common place for workers to use whistleblowing protection to complain about a breach of their own contract of employment. In the pivotal case of Parkins v Sodexho, the Employment Appeal Tribunal ruled that a breach of an individual employment contract could be protected under the whistleblowing legislation even where there were no wider public interest implications. Parkins was a surprising decision at the time, as PIDA was generally thought to govern disclosures about facts or situations affecting other employees or third parties in which there was some element of public (rather than merely private) interest. Given the more generous statutory protections afforded to whistleblowers, the case opened the flood gates for opportunistic employees keen for recompense for their own personal employment problems, whether on dismissal, or during the course of their employment.

The ‘public interest’ requirement

Recognising that the protection provided by PIDA was too wide, on 25 June 2013, new statutory provisions were introduced requiring that a whistleblower must have a reasonable belief that their disclosure is made “in the public interest”.  Whilst not preventing a worker with questionable motives still being able to blow the whistle on a matter of public concern – it is possible to ‘do the right thing, but for the wrong reasons’ – the hope was that this would prevent workers blowing the whistle over complaints about their own contract of employment, or as a way of causing a nuisance to their employer

A loophole for workers still currently prevails…

But what has come of the reinforcement of the requirement for a disclosure to be ‘in the public interest’ before any protection from dismissal or detriment is obtained? Can you respond to workers complaining about their own contracts of employment as you would someone bringing a grievance, or should you also respond to them as a whistleblower? As the cases start to filter through, a difficult landscape for employers to navigate is emerging:

  • In Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed, the employee alleged that the profit and loss figures of a large estate agent were being manipulated to limit the amount of bonus that could be earned by a group of about 100 managers – including himself. The EAT accepted that the public interest requirement was met. While the employee in this case was principally concerned with his own situation, there was evidence that he was also concerned about the position of his colleagues.
  • In the case of Morgan v Royal Mencap Society, the Employment Appeal Tribunal accepted that an employee’s complaint about her own cramped working conditions could, in principle be ‘in the public interest’, as the employee could have a reasonable belief that members of the public would be concerned about the working conditions of an employee at a major charity.

From these two cases, the problem for employers is plain to see. If a worker can show that a number of people are affected by the problem complained about, the public interest requirement may be satisfied. You must therefore be cautious when handling complaints about matters not limited to the individual in question, or that might attract public concern. Before 25 June 2013, a qualifying disclosure made to anyone other than a legal advisor had to be made “in good faith” for it to be protected. This requirement was removed and replaced by the public interest requirement. Whereas pre-June 2013, a disclosure made predominantly to put pressure on an employer not to dismiss, or to strengthen the employee’s position in negotiations, was unlikely to be made in ‘good faith’, it could now arguably satisfy the public interest requirement if it is a matter of concern not limited to the worker himself.

The Chesterton case is due to be heard by the Court of Appeal this October – its outcome is eagerly anticipated.

An area ripe for reform?

Whilst we wait for the courts to determine what “in the public interest” really means, there continues to be increasing pressure for reforms in this area to create an environment where those with genuine concerns really do feel they are able to raise them without personal repercussions. This autumn sees more stringent rules on whistleblowing in the financial services sector. Enhanced whistleblowing protection has also been given to junior doctors. Will this bring more pressure on the government by to introduce reforms more widely? It cannot be ruled out.  Indeed, Public Concern at Work has recently published “Whistleblowing: Time for Change” – a five year review of its work. It alludes to the need for organisations to adopt “strong and clear values” in “an open and constructive culture”; enabling individuals to “raise challenging, difficult, and contentious issues freely without fear of recrimination”.

How to support genuine whistleblowers in your business

With all of this in mind, how do you go about supporting genuine whistleblowers in your business? There is no magic to creating an organisational culture that enables workers with genuine concerns to feel supported in raising them through the right channels. But there are a number of logical steps to take (and bear traps to avoid): 

DO

Have a clear and transparent policy that is accessible to all workers. It should clearly identify who can be approached by workers that wish to raise a disclosure, and provide for alternative persons whom can be approached in case an individual worker is not comfortable with the appropriate person identified in the policy. The policy should manage a whistleblower’s expectations on what feedback they can expect to receive and when.

DO

Raise awareness of your policy, and provide training to all workers on how disclosures should be raised and how they will be acted upon. The Whistleblowing Guidance and Code of Practice for Employers published by the government in 2015 provides suggestions on promoting a policy, including appointing a whistleblowers’ champion to drive the commitment “to valuing whistleblowing and protecting whistleblowers within the organisation”.

DO

Lead by example, by training managers on how to deal with disclosures and by making clear that any detriment towards an individual who raises a disclosure is unacceptable.

DO

Make sure you have procedures in place for dealing with anonymous disclosures. Workers should be made aware that an anonymous disclosure may limit the protection available to them as a whistleblower, but where an individual wishes to retain anonymity, using “telephone appointments” or “an anonymised email address” may assist in this respect.

DO

Put in place procedures for monitoring how whistleblowing works within your organisation, and:

  • record the number of whistleblowing
    disclosures you receive and their nature;
  • maintain records of the date and content of
    feedback provided to whistleblowers; and
  • conduct regular surveys to check whether your
    process is working.

DO

Take care when tackling a worker’s underperformance, absence or other workplace issues that there is a clear paper trail documenting the process and reasons for it. A worker may be tempted to raise a whistleblowing issue when faced with such allegations – muddying the waters whilst seeking to enhance the statutory protections available to them and raise reputational stakes. A whistleblowing claim will only be successful where the worker can show that any detriment suffered was “on the ground” of the protected disclosure, or the principal reason for their dismissal was the fact they had made a protected disclosure.

DON’T

Penalise workers for making a disclosure, even if it proves unfounded. If the worker had a reasonable belief in the wrongdoing, reprisal is unlawful, even if the allegations prove unfounded.

Of course, workers knowingly making false disclosures should be subject to disciplinary proceedings, but be sure of the circumstances before taking any disciplinary action.

DON’T

React defensively or try to play down a worker’s concerns. This is particularly important where your personal views of an employee may prejudice your reaction to what the worker has to say.

DON’T

Retaliate by raising concerns with the employee’s performance, attitude or otherwise. Keep any measures taken to address the employee’s shortcomings completely separate from your investigation into their disclosure.

DON’T

Dismiss a disclosure about the employee’s own employment. Does it affect a wider group of workers in your organisation or is it of wider public concern?