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Whistleblowing in the COVID era - whistleblowing policies

This is the third in a mini-series of articles looking at whistleblowing claims. This article looks at the importance of having whistleblowing policies in the workplace.

Having a clear and cohesive whistleblowing policy in place assists employees with making whistleblowing complaints in a correct and compliant way and enables employers to handle them effectively in response. 

Is it a legal requirement to have a whistleblowing policy in place?

This will depend on the particular type of organisation.

  • the UK Corporate Governance Code requires UK listed companies to have written whistleblowing arrangements in place, or to otherwise explain why they do not
  • certain organisations governed by the FCA and PRA such as large banks and insurers are governed by FCA and PRA whistleblowing rules which require written procedures to be in place and available to employees. Such rules are more detailed than those provided by the Employment Rights Act 1996 and are not considered as part of this article
  • all public bodies are generally expected to have written whistleblowing policies in place and some, including local authorities, will be assessed on the arrangements in place
  • US public companies and their subsidiaries (wherever they are based) are required to establish whistleblowing procedures that deal specifically with complaints about accounting or auditing matters
  • many employers will fall outside of this scope and are not legally obligated to have a whistleblowing policy in place. If a written policy is not compulsory, is it really necessary?

Key reasons to implement a whistleblowing policy

There are a number of arguments for having a whistleblowing policy in place. Whilst it may not be a legal requirement for all employers, it could assist employers in meeting other legal obligations or in order to defend any potential (and costly) breach(es) of employment law(s).

A whistleblowing complaint, or protected disclosure (see our earlier article in this series for more information), is likely to be in reference to a serious offence or wrongdoing. Having a policy in place and encouraging employees to make disclosures where they have concerns allows employers to address any misgivings within the business before they get out of control. Alternatively, they give employers the opportunity to act swiftly in the event that they are put on notice of any regulatory or other legal breach. 
 
For example, COVID related disclosures, such as failures to abide by relevant restrictions or falsifying testing outcomes, could assist employers with upholding their health and safety obligations. This not only helps the business to reduce any regulatory or reputational risk but also very importantly, encourages the protection of the health of colleagues.  
 
If an allegation of an employee’s criminal or serious misconduct is made, then it brings this to the attention of the employer who can then undertake investigation and disciplinary proceedings where necessary.
 
Whilst employees are, of course, free to raise concerns without having a written policy in place, a policy can help to clearly direct employees and reassure them that any disclosure will be confidential and that they will be safe from any potential reprisal. Additionally, having a clear directive on who to approach may prevent an aggrieved employee from going straight to the press and creating a much greater (and less controlled) fallout. 
 
For managers, a written policy will assist in guiding them to not only identify a potential whistleblowing complaint but also guide them to where they can seek assistance for handling that complaint and making sure it is done so properly.
 
A policy also sends a clear message out that any detrimental action taken against whistleblowers will not be tolerated and is against the law. This will assist managers in taking appropriate action if they become concerned with such behaviour. 
 
A whistleblowing policy is evidently a practical and sensible workplace tool that is strongly advised to be put in place if not already.

What should be included in a whistleblowing policy?

An effective whistleblowing policy does not need to be overly long or cumbersome. It is important that it is clear and easily accessible by all members of staff. The main elements of the policy are likely to cover:

  • an overview of whistleblowing and explaining protected disclosures in simple, jargon-free language
  • how to raise a whistleblowing concern – directing the individual to a specific person, form or helpline
  • explaining the next steps including any initial meetings with the individual, investigation and whether the outcome will be shared or not
  • explaining that any concerns will be treated confidentially (and anonymously where possible – although this cannot ever be guaranteed)
  • what to do if the individual is not happy with the process or outcome
  • outlining the protection and support available for whistleblowers
  • outlining the individual’s right to make a report externally (for example, to a regulator) if necessary

    In addition, we would suggest that the whistleblowing procedure is kept separate from the grievance procedure; this enables the appropriate procedure to be identified and followed more easily than trying to pick out potential whistleblowing complaints from what might look like a normal grievance. Of course, there might still be some overlap so those handling such complaints should know how to identify the relevant matters.

In addition, we would suggest that the whistleblowing procedure is kept separate from the grievance procedure; this enables the appropriate procedure to be identified and followed more easily than trying to pick out potential whistleblowing complaints from what might look like a normal grievance. Of course, there might still be some overlap so those handling such complaints should know how to identify the relevant matters.

Who will be responsible?

Overall responsibility for whistleblowing usually rests at a high level (either the Chief Executive, board or similar). This should be someone, or a committee, who is able to monitor the whistleblowing arrangements in place, facilitate disclosures and who can ensure that any changes arising out of investigations under that policy are able to be properly implemented. 

Day-to-day responsibility might sit with the HR team (if there is one) but, in any case, it is helpful to appoint a designated person to be contacted if someone wishes to raise a whistleblowing concern. This person, or perhaps a confidential hotline if reasonable, should be clearly identified in the policy.

Training

Managers and staff with responsibility for operating a whistleblowing policy should receive training in order to help them deal with issues arising out of investigations into disclosures. They need to be able to make accurate assessments of the necessary steps and to resolve matters appropriately.  
Training should also cover the legal impact of whistleblower protections so that it is clearly understood that workers should not be deterred or mistreated for raising legitimate concerns. 

A step towards a better culture

Many organisations have cultures which discourage staff from making whistleblowing disclosures. This could be for a number of reasons such as a lack of anonymity or from a fear of retribution despite the legal protections in place. Putting a policy in place will not automatically create a better culture, but it is a step in the right direction, particularly when implemented with the appropriate training and ongoing education as needed to encourage staff to make use of it.
Whilst whistleblowing complaints have become more prominent in the employment tribunal as a result of the pandemic, employers should not shy away from encouraging whistleblowing in the workplace. More so it has become ever more important to have clear processes in place to be able to deal with complaints properly and to protect the rights of those concerned employees, whether COVID related or not.

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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