Whistleblowing can be big news – former HSBC employee Herve Falciani’s revelations about the bank’s role in assisting clients to evade tax running to millions of pounds is an example.
However, it can also be smaller news – for example, disclosures which tend to show that an organisation’s activities pose a danger to the health and safety of any individual or to the environment are protected as well. This means that every employer should be aware of how to handle whistleblowing disclosures by staff.
Points to remember:
- Employees who are dismissed because they made a whistleblowing disclosure do not need to have worked for two years to bring a claim and any compensation could be unlimited.
- Employees are protected, but so are workers, including agency workers, freelancers and trainees.
- If staff suffer as a result of making a whistleblowing disclosure – for example by being refused promotion or a pay rise – they may claim for unlawful detriment.
- Staff do not need to act in good faith, although they must reasonably believe they are disclosing information which tends to show malpractice in one of the relevant categories and that the disclosure is in the public interest. This raises the spectre of staff using whistleblowing as a negotiating tool if dismissal is imminent – and gaining leverage from the possibility of unlimited compensation. This makes it vital to handle allegations effectively.
Best practice advice is to:
- Develop a whistleblowing policy clearly setting out the employer’s processes for reporting concerns and make sure that workers are given alternative reporting avenues to bypass those who may be involved in malpractice.
- Circulate the policy to all staff and update and recirculate it regularly. Make sure all staff are aware that victimisation of those who raise concerns will be treated as a disciplinary offence, to avoid the organisation being responsible for such acts.
- Train managers and senior staff in dealing with whistleblowing disclosures.
- Always investigate promptly and wherever possible keep the whistleblower informed of progress. This will reduce the risk of external disclosures being made by a disillusioned employee or worker.
- Do not use gagging clauses in settlement agreements or use, or threaten to use, confidentiality clauses in contracts to prevent whistleblowing disclosures. They are likely to be unenforceable and may trigger claims for detriment.
- Plan how to manage a whistleblowing crisis in advance, including who within the organisation will deal with it and how, to limit reputational damage and adverse publicity.
Big news or small news, all employers should take action now to plan for and deal effectively with whistleblowing.
If you would like advice on this issue, please contact a member of our Employment team.
