Whistleblowing

Sometimes, an unlawful breach or wrongdoing can occur under your employment. When this happens, employees may decide to raise a concern through whistleblowing.

Whilst this is their legal entitlement, you must manage the situation to the best of your ability. If not, you could end up facing reputational damages, business closure, and even potential imprisonment.

In this guide, we'll look at what a whistleblowing policy is, the UK law on disclosures, and how these concerns are dealt with at work.

What is a whistleblowing policy?

A whistleblowing policy are guidelines which manage concerns raised for the sake of public interest. When an employee is vocal about workplace misconduct, it’s commonly known as ‘blowing the whistle’.

These kinds of concerns are seen as fundamentally illegal, wrong, or endanger the lives of people in the business, as well as the general public.

The term 'public interest' legally relates to any wrongdoing which affects people other than employees.

Why do you need a whistleblowing policy?

It doesn't matter if a current worker raises concerns or a previous one–you need to have a whistleblowing policy in place. Not only does it outline legal regulations, it sets out guidelines on how to protect the output of your workplace.

Having a whistleblowing policy in place:

• Allows employees to 'speak out' about any wrongdoing present in their workplace. 
• Helps you and employees understand legal rights when it comes to whistleblowing.
• Encourages employers to act on issues appropriately before they escalate to a state of no return. 
• Sets out procedures for managing a disclosure; and ensures they're solved sooner rather than later.

Despite it involving public interest disclosure, a whistleblowing policy can help avoid bad publicity, illegal wrongdoing, and reputational damages.

Is whistleblowing different to raising a complaint?

Raising a concern through whistleblowing is different to making a complaint.

A complaint or grievance is raised when an employee has a concern about their work conditions, environment, or position. It happens to them personally, or to those around them–and doesn't generally require public disclosure.

For example, an employee raises a concern about harassment they've experienced from their line-manager. This complaint involves the victim (the employee), the accused (the line-manager), and the prosecution (the employer or grievance team). Because it doesn't require public disclosure, this is a grievance rather than a concern for whistleblowing.

But when a concern relates to those inside and outside the business, it can be raised through whistleblowing.

When is whistleblowing used?

There are several reasonable grounds for when whistleblowing can be used. However, most cases must include one of the following:

• Criminal offence: This includes acts like financial corruption, human trafficking, and modern slavery.
• Noncompliance of legal obligations: This relates to conduct like discrimination, bullying and harassment and safeguarding breaches.
• Miscarriage of justice: This involves penalising someone for the actions of a different person, as well as victimisation.
• Health and safety risks: This includes neglecting working standards, using inappropriate machinery, and exposure to unsafe chemicals.
• Environmental damages: This covers things like illegal disposal of chemicals and toxins; as well as damaging natural habitats. 
• Deliberate concealment: This uncovers whether the following information or accounts have been deliberately concealed. For example, tampering reports, excluding findings, or presenting false information.

Who can raise concerns through whistleblowing?

There are certain people who can legally raise concerns through whistleblowing. The 'whistleblower' must identify as one of the following:

• A current employee.
• A former employee.
• A trainee. 
• An agency worker.
• Member of an organisation (like the Limited Liability Partnership (LLP)).

UK law on whistleblowing in the workplace

Under UK law, legal regulations surrounding whistleblowing are presented in the Public Interest Disclosure Act 1998 (PIDA).

The law outlines three categories which must be fulfilled for a whistleblower to raise matters. These include:

1. The whistleblower must be classified as a 'worker'.
2. The content of the concern must be considered as 'protected disclosure'. 
3. The whistleblower must disclose information to the relevant person, department, or government authorities through appropriate action.

The worker is legally protected from detriment by their colleagues, managers, and the business itself. Employees can claim unfair dismissal if their concern meets all three categories.

If they face discrimination, harassment, or dismissal, they could decide to raise their claim to the employment tribunal.

What is a protected disclosure?

A protected disclosure is a concern which legally qualifies to be raised through whistleblowing.

Under the Public Interest Disclosure Act 1998, a concern qualifies as a protected disclosure if it meets the relevant requirements.

When an employee has reasonable belief about a concern, their qualifying disclosure must come under one of six categories. For example:

1. A criminal offence.
2. A breach of law or legal obligation.
3. A miscarriage of justice.
4. A danger relating to a person or peoples' health and safety.
5. Damage to the environment.
6. The deliberate concealment of information for any of the above.

After this, the employee must raise it for public interest and have reasonable grounds to do so. This means the information they disclose must be substantially true in their opinion or experience.

How to manage a whistleblowing policy in the workplace

When it comes to managing disclosure, your whistleblowing policy must be transparent, understandable and relevant to your employment.

If employees are unaware of how to raise a concern, it worsens conditions for everyone involved in the matter.

Let's look at ways to manage a whistleblowing policy in the workplace:

Present the definition of whistleblowing

Firstly, start your policy by outlining what whistleblowing is. Make sure employees understand what it means, legal requirements for it, and what procedures it involves.

And most importantly, make sure they understand how a concern is dealt with through whistleblowing. They should be aware it's not used for raising a personal complaint or grievance. You can even include an example of the six legal categories outlined under PIDA.

Your policy should also clearly state not all disclosures raised will classify as a major issue. If workers wish to report a wrongdoing, they should have confidence in doing so–without facing discrimination or dismissal.

Outline your statement of intent

With every workplace policy, employers need to present their statement of intent.

In this case, your declaration should outline your intention towards managing wrongdoing through whistleblowing–well before it reaches public interest.

Ensure your statement covers every action the business will take during this time. As well as what requirements fall on employees who are raising concerns.

Highlight protection for the whistleblower

Whether it'll affect your business or not, whistleblowers are legally protected under employment law.

Make sure you highlight legal protection terms in the act, as well as employer rights during cases. Employees must not be discouraged from raising a concern.

Protect them during this time and minimise conduct that is both legally and morally wrong.

Reporting a concern

When an employee wants to report or raise a concern, they need to adhere to the following:

• Relevant people: The employee should raise their concern to their employer; freely, without facing any backlash or consequence. 
• Information: A whistleblower is technically not obligated to provide evidence (but can do if they wish). Instead, they should raise their concern; explain their issue; and present any information or accounts they hold.
• Procedure: The employer needs to act on high standards when dealing with disclosure. Deal with any wrongdoing accordingly, without neglecting or ignoring matters.

Your policy needs to clearly state the consequences of disclosures raised maliciously or in bad faith. Any false disclosure could lead to disciplinary action; as well as undermine the point of the policy.

Keep confidentiality throughout

In most cases, employees might lack confidence to raise matters through whistleblowing. Or they could feel uncomfortable speaking out about concerns publicly.

That's why it's vital to keep confidentiality throughout the report–especially when it comes to raising anonymous allegations. Avoid leaking identities to people outside the disclosure. And ensure only relevant people or departments are informed about the report.

However, in cases of whistleblowing, the accuser is almost always known–by the business and public interest. Ensure this information did not come from your side. And respect confidentiality during the whole report.

Announce the outcome

When announcing the outcome, it must be done by a prescribed person or people. An employer can investigate and give an outcome through an internal audit. Or a worker can raise their concern to a prescribed person or body.

This prescribed person acts as a third-party; and ideally must not have any direct link to either side. For example, you can contact a legal advisor or a local MP.

Ensure non-prescribed people, like the media, should not be provided with feedback. Doing this could directly cause a loss of protection for the whistleblower.

If it's appropriate, some matters raised may need to be referred to a government department or regulatory agency. Here, an external auditor will conduct an independent inquiry into the matter accordingly.

In these cases, you may need to contact the following government authorities:

• The Serious Fraud Office.
• The Financial Conduct Authority.
• The Health and Safety Executive.

Provide feedback accordingly

Once the disclosure has been raised, it's important to provide feedback to the whistleblower. Present it in writing through a feedback form. This should include relevant dates, details, and decisions for the case.

The feedback must be given privately and only made available to a relevant person or department. For example, if the accused is involved in a disciplinary offence, it shouldn't reach the general public.

Although there is no set timescale for providing feedback, provide it within a reasonable period. Clarify that feedback is subject to outgoings from further investigations.

In some cases, both parties could outline a settlement agreement during this time. This is not a bribe; rather, it’s used to pay the employee a sum of money in return for them waiving certain claims.

Offer guidance and advice

Generally, a whistleblower is raising a concern against your business for good reason. That's why it's vital to keep relationships professional between the two sides.

Offer guidance and advice during and after the whistleblowing procedure. And encourage workers to voice any concern or issue they face during work. Make sure they understand all of grievance procedures. And how you will be proactive in managing them to the best of your ability.

Get expert advice on whistleblowing policies with Peninsula

As an employer, you have a lawful responsibility to manage concerns raised through a whistleblowing report. By doing so, employees can confidently speak out about issues happening at work.

Failing to follow lawful procedure or confidentiality protection could lead to negative impacts to your business revenue and reputation.

Peninsula offer expert advice on managing your whistleblowing policy. Our team offers unlimited 24-hour HR advice for all employment matters. It's available 365 days a year; with guidance from multi-lingual departments and fully trained counsellors ready to help.

Want your own legal advice? Book a free consultation with our HR consultants. Contact us on 0800 029 4380.