In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
The word 'whistleblowing' often conjures up visions of news reports of disgraced organisations and the tragic stories of the victims.
Whilst these visuals may serve as a terrible warning, it can mean that the mention of 'whistleblowing' is accompanied by panic and suspicion. This is not helped by complex legal definitions and little practical guidance. An effective whistleblowing policy should have the opposite effect; it should create a culture that enables employees to speak up about issues that concern them before they escalate and to do so with the comfort of knowing they will be listened to and not punished.
In this ebriefing, members of the employment and pensions team answer common FAQs about whistleblowing; debunk some of the definitions and offer practical answers to deal with disclosures and help create an effective culture within your organisations.
What’s the difference between a qualifying disclosure and a protected disclosure?
Jackie Morris, associate in the team, comments:
"A qualified disclosure is when an employee (or worker) shares or discloses information which they reasonably believe is in the public interest and relates to one of the following: a criminal offence, a breach of a legal obligation, a miscarriage of justice, a danger to the health and safety of the discloser, damage to the environment or the deliberate concealing of information about any of the above. This becomes a protected disclosure under the whistleblowing legislation if the disclosure is made to one of the following categories of people; the worker’s employer, the person responsible for the failure, legal advisers, Government ministers, or a person prescribed by an order made by the Secretary of State; and the employee can demonstrate that they reasonably believed that the disclosure was in the public interest."
Does an employee have to include certain details for their complaint to be a protected disclosure?
Hannah Bollard, associate in the team comments:
"The disclosure must be a disclosure of information; one which conveys facts and sufficient details to demonstrate wrongdoing(s). An allegation or a rant will not be enough! If you do receive a complaint which contains so little information that you cannot take it further, we would advise you to request further information rather than ignoring any potential protected disclosure or investigating it with little information available."
Can an employee make a protected disclosure about their personal circumstances, for example, if they think their employment contract has been breached?
Doug Mullen, partner in the team comments:
"Disclosure of information about 'any breach of legal obligation' to an employer is one of the wrongdoings listed as a potential protected disclosure. This definition is very broadly drawn and so could theoretically include any legal obligation towards an individual employee including one arising from an employment contract. That said, for the disclosure to be protected, the employee would still need to demonstrate that they reasonably believed that the disclosure was in the public interest to satisfy the test for a protected disclosure. In practical terms, employees will struggle to demonstrate that a dispute concerning their private employment contract satisfies those tests. We would advise you steer them down the grievance route and seek a solution that way."
How does an employer know whether a complaint raised by an employee is a grievance or a potential protected disclosure?
Sarah Harnett, solicitor in our team comments:
"To some extent, your response on receiving the complaint should be the same irrespective of whether it is a grievance or a potentially protected disclosure. The complaint should be investigated and, based on the findings of this investigation you should make a decision regarding any further action. With that in mind, we advise that the procedures in your grievance and whistleblowing policies reflect each other to make this easier. Please do contact us should you need any assistance with drafting or improving current policies."
Why do we need a whistleblowing policy as well as a grievance policy?
Hazel Findlay, associate in our team comments:
"There is no legal requirement for you to have a whistleblowing policy in place (see question below regarding regulatory requirements). However, the purpose of having such a policy is not so much in the policy itself, but in the message it sends out to your employees. It acknowledges first that there may be issues of wider significance that they are encouraged to raise and second, that you as an employer guarantee any disclosures will be taken seriously and the disclosing employee will be protected from any future unfair treatment as a result of them making the disclosure (provided of course the disclosure is made appropriately and in good faith)."
"Whilst the legislation may not explicitly require a whistleblowing policy, your regulator may do so. In health and social care, the Care Quality Commission states clearly that all organisations which provide care must have a whistleblowing policy. Its new five-year strategy with an increased emphasis on listening to all its stakeholders will most likely place accessible and robust whistleblowing policies as part of this.
A similar push to have transparency and collaboration is seen in the housing sector in the new 2020 National Housing Federation Code. Under Principle 4 of the Code, Boards are held responsible for their own probity and must be more intentional in ensuring that controls are in place for the referral and determination of individual cases raising issues of conflict and probity etc. This includes whistleblowing. One major change is the requirement that there must be clear arrangements in place for staff and others to raise serious concerns with a non-executive director on the board (other than the chair), where it would not be appropriate for them to be raised through the usual channels.
Within the charity sector, it is worth noting that whilst volunteers do not have the statutory protections that employees have, the Charity Commission will accept and investigate protected disclosures made by volunteers. Under the National Council for Voluntary Organisation’s Charity Ethical Principles, charities 'should operate a presumption of openness and transparency' which involves publishing their whistleblowing policy.
Please do contact the employment and pensions team directly should you want any further sector-specific advice."
An employee has made a protected disclosure under the whistleblowing policy, what is the extent of our duty to investigate?
Alice Kinder, solicitor in our team comments:
"As with any investigation into an issue whether it be a grievance, disciplinary matter or protected disclosure, your investigation should be reasonable and proportionate in the circumstances. You are not required to turn over every proverbial stone! If, after a reasonable investigation, there is no evidence that a wrongdoing has occurred, do not automatically assume that the disclosure was made in bad faith. Having said that, it may well be that the disclosure is not a protected disclosure and was made maliciously. For the disclosure to be protected, an employee must demonstrate their reasonable belief in the wrongdoing; hard to do if an investigation has found no evidence to substantiate such belief."
What steps can the employer take if it believes the disclosure was made maliciously?
Matthew Wort, partner in our team comments:
"Any disclosure made, even if thought to be made maliciously, must still be approached in the same way as any other disclosure. This means that it must be handled fairly in accordance with your policy, always applying a presumption from the outset that the complaint has been made in good faith, unless and until there is clear evidence to the contrary. In identifying malicious complaints, you must be careful to ensure that you are satisfied, as far as possible, as to the falsity or otherwise of the complaint raised. You must also be careful to distinguish between employees who are raising genuine concerns, which prove to be unfound and those who are being intentionally difficult and vexatious. If, following investigation, there is evidence that the complaint in question has been made in bad faith, you may be able to take disciplinary action against the complainant."
Is whistleblowing changing and what do I need to know?
Anna Dabek, department head comments:
"As we look to new cultural norms in our workplaces and a focus on wellbeing and inclusivity, the prescriptive sometimes adversarial nature of the whistleblowing procedures and practices are evolving. There is a move away from the language of whistleblowing to one of 'speaking up', from whistleblowers to 'reporters' and whistleblowing officers to 'listeners'. The end goal is to encourage a culture of openness where issues are addressed early on for the benefit of both employees and employers. You may want to consider whether your policies need to reflect this cultural shift and the language used changed to reflect more collaboration and transparency.
Please do contact the employment and pensions team directly should you need assistance with drafting/re-drafting your whistleblowing policy."
For more information
If you would like more details about anything in this ebriefing, please speak to your usual ACS contact or our employment and pensions team.
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