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Whistleblowing in the COVID Era - Confidentiality

In our fourth article on whistleblowing claims we focus on the need, in sensitive situations where concerns of serious (and perhaps even criminal) wrongdoing are raised, for the complaint to be dealt with confidentially and/or anonymously where possible.

In our previous articles we have considered questions such as what constitutes a ‘protected disclosure’, when is something in the public interest and how can effective and clear policies help employers to handle protected disclosures. Now we turn to the question of if, and when, an employer should deal with a whistleblowing complaint confidentially and/or anonymously.

Confidentiality in the workplace

Whistleblowing, by its definition, involves the discussion and disclosure of information that can relate to matters which are very concerning from both an individual and organisational perspective. We have already discussed the wide range of topics that whistleblowing can cover, and the sensitivity of that information is a significant part of the reason why great take care must be taken in relation to the person who has disclosed that information.

Confidentiality is likely to be very important for the individual – they will want to feel secure that the complaint they have made (and the fact that it is them specifically that has made it) is treated with sensitivity and does not have adverse consequences for them. Organisations can ensure that they have done this in a number of ways, including having a separate confidential hotline or, failing that, a way of ensuring that the complaint can be made anonymously if at all possible. This gives reassurance to the person making the complaint and reduces the risk of reprisal against them, inadvertent or otherwise.

However, the idea of confidentiality in the context of whistleblowing goes further than just protecting the individual once the concern has been raised. It also extends to the ability to make the disclosure in the first place. For this reason, contractual documentation must also reflect the fact that whistleblowing concerns can and should be raised within the organisation at any time. The crux of the matter here is that any contract clause which tries to prevent or discourage a person from making a protected disclosure is null and void. It is necessary that any prohibition on divulging the organisation’s confidential information (either during or after the employment) has a carve-out for making protected disclosures or any other disclosure they are allowed to make by law.

If a company disregarded such a carve out and tried to enforce any confidentiality wording in order to ‘hush up’ someone who wanted to make a protected disclosure, this could give rise to a legal claim. While we will cover the specific whistleblowing claims and remedies in more detail in the next article, any undue pressure or disciplinary proceedings could constitute a detriment for the purposes of a whistleblowing claim, which can attract compensation for injury to feelings.

If an organisation mistakenly believes it has the right to rely on contractual confidentiality wording to prevent people from making disclosures and that person brings a claim at the Employment tribunal, it could be scrutinised heavily by the tribunal and lead to a judgement that could be damaging for the organisation, both financially and reputationally.

Confidentiality at the end of employment

Confidentiality is also important when it comes to the end of an employment relationship, particularly where it does not end on the best of terms. If the parties enter into settlement discussions it should be made absolutely clear in any settlement agreement that the confidentiality clauses in those documents do not prevent the individual from making a protected disclosure under the whistleblowing regime.

If the person has already made a disclosure and the settlement documentation is in relation to a purported whistleblowing claim, it is possible for the employee to contractually waive their right to bring that claim. However, the document cannot serve as a ‘gag’ on that person from making further disclosures.

This area has been subject to increased public scrutiny in the wake of the seemingly widespread use of non-disclosure agreements (NDAs) in cases of alleged sexual misconduct, both within the employment relationship and outside of it. The #MeToo movement has brought focus on the inappropriate use of NDAs in such a situation and the government has indicated its intention to legislate on the use of NDAs as a result.

It is absolutely clear that an NDA (or indeed any document that contains a provision that seeks to limit the disclosure of information) cannot be used as a form of intimidation – evidence of coercion will mean that the agreement is void. Individuals who are offered an NDA should also be given the opportunity to take their own independent legal advice on its terms. In the employment context a settlement agreement is not legally binding unless the employee has received independent legal advice from someone who is both qualified to give it and who is also sufficiently independent (i.e. not the employer’s solicitors).

Another key consideration is that confidentiality restrictions definitively do not remove the requirement to report misconduct to a regulator. Of course, there are different obligations for different industries/professions, but by way of an example it would not be possible to prevent someone who works in the financial services sector from reporting wrongdoing to the Financial Conduct Authority.

Confidentiality at the tribunal stage

When an organisation is faced with a tribunal claim from a current or former employee, an important (and often overlooked) consideration is the fact that the allegations will be brought out in public at a final hearing. Although the tribunals have been making increased used of remote video hearings as a result of the pandemic, these hearings are still open for members of the public (and the press) to attend, under the principle of open justice.

While in some cases an organisation will want to be seen as ‘taking a stand’ on certain issues, there are many instances when it might not be to the employer’s benefit for their dirty laundry to be aired in public. Difficulties arise where allegations are being made that are potentially damaging to the reputation of the organisation, as these will be out in the public domain regardless of whether they are found by the tribunal to be true. This opens the organisation up to inflammatory headlines followed by the words “…tribunal hears”. The organisation might win in the tribunal claim but lose in the court of public opinion.

In whistleblowing cases, the allegation will be that the claimant has already made a protected disclosure. As set out above, it is not possible to use contractual documentation to stifle protected disclosures. As well as the risk of a final hearing leading to reputational issues, there is also a box in the ET1 form (which a claimant must fill in in order to bring a claim) asking whether the claimant gives their permission for the tribunal to forward details of the claim to a relevant regulator.

Even if the tribunal claim is settled (usually by way of a COT3 agreement), if a regulator learns of alleged misconduct within its jurisdiction it will still continue to investigate and, if necessary, take appropriate action against the organisation. For example, if a care sector worker alleges that they ‘blew the whistle’ on a failure to provide staff with adequate PPE or about widespread mistreatment of vulnerable people and were dismissed for it, even if the parties were able to settle the tribunal claim, it is almost inevitable that the Care Quality Commission would want to investigate these serious allegations further.

The fact that it is not possible to restrict the making of protected disclosures, the public nature of tribunal hearings and the fact that the tribunal has the ability to notify regulators of alleged misconduct all combine to demonstrate the need for proper whistleblowing policies and a culture of openness and transparency when it comes to employees revealing their concerns about serious wrongdoing and having these handled correctly.

The next, and final, article in our mini-series will look at the actual process of a whistleblowing claim itself, including the types of remedy and compensation that are available to employees.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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