Whistleblowing has been back in the news again recently, with a number of high profile cases making the headlines. Tesco, which in September was forced to restate its profits, was apparently alerted to issues by a whistleblower in July but failed to take any action. In more recent news, two whistleblowers at FIFA were ‘outed’ despite allegedly being promised anonymity when the organisation’s ethics investigator compiled his investigatory report. These cases have highlighted the risks which arise when organisations fail properly to act on whistleblowing.

Whilst many employers will have whistleblowing policies in place, issues often arise in relation to the ways in which those policies are implemented in practice. All policies will include an anti-detriment statement, but how often is this breached? The Commons Public Accounts Committee’s report on whistleblowing was published in July, and focused on the treatment of employees in public services. It found that there had been a “startling disconnect between the generally good quality of whistleblowing policies in theory and how arrangements actually work in practice”. It is this disconnect which, in any sector, is likely to give rise to conflicts, broader disclosures and Employment Tribunal claims.

There are a number of key things which an employer should do in practice in order to ensure that they are appropriately and adequately responding to a whistleblowing disclosure. They should take any such disclosure seriously and, equally importantly, be seen to be taking such disclosure seriously. This includes follow up and investigation, where necessary. So, unlike the Tesco case, if serious concerns are raised they should be investigated promptly and any steps taken should be communicated to the relevant people (including the whistleblower). Generally, the needs and wishes of the whistleblower should be considered at each stage of any whistleblowing process (including the wish for anonymity, as in the FIFA case). Keeping a whistleblower appraised of any developments, and demonstrating that appropriate steps are being taken, is likely to assure a whistleblower that the matter is being dealt with properly (and therefore discourage a broader disclosure).

Of course, the commercial reality is that not all whistleblowing claims will be genuine. Strong policies and procedures are an effective way of guarding against opportunistic litigation. The changes introduced to the whistleblowing legislation last year by the coalition government have not been completely successful in removing opportunist disclosures, or disclosures not strictly in the public interest. However, anecdotal evidence would suggest that Employment Tribunals are now less tolerant in relation to claims which appear to be self-serving, which is a step forward.

Of course, the idea that whistleblowing is an effective and constructive mechanism depends in part on an organisation having a culture in which people feel able to raise concerns, and are confident that they will be treated properly. In an ideal world, people would probably feel able to do this without recourse to a policy. In reality, the important thing is not the policy itself but the way in which it is interpreted and implemented by management. This will be key to the organisation effectively identifying and addressing any concerns raised, while at the same time and wherever possible retaining the whistleblower as an effective and engaged member of staff.

Posted on 28/11/2014 in Legal Updates

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