EM Law are experts in drafting and advising on whistleblowing and whistleblowing policies. Our employment law team have partner-level experience from leading City and national firms as well as in-house experience from global businesses. We act for employers as well as employees.
”Whistleblowing” refers to the act of reporting or exposing wrongdoing, either within an organisation, or externally, for example to a regulator or the press. The law on whistleblowing is contained in the Employment Rights Act 1996, (ERA 1996) as amended by the Public Interest Disclosure Act 1998 (PIDA).
Whistleblowing and the law
PIDA amended the ERA 1996 to introduce protection for workers (including employees) who “blow the whistle” on wrongdoing at work. Workers have a right not to be dismissed or suffer any detriment at work as a result of making a “protected disclosure”.
For the disclosure to be protected, the worker must:
Where whistleblowing is the reason (or principle reason) for an employee’s dismissal, that dismissal is automatically unfair and employment tribunals are not restricted by the usual qualifying period for unfair dismissal claims, or the upper limit on unfair dismissal compensation. A tribunal can also make an interim order for the continuation of an employee’s contract of employment, on full pay, pending final determination of the unfair dismissal complaint.
Drawing up a whistleblowing policy
The principal objectives of a whistleblowing policy and procedure should be to:
Relationship with other policies and procedures
Before introducing a whistleblowing policy, an employer should review any policies, procedures, codes and rules that are already in place, such as those contained in contracts of employment, staff handbooks and intranets. This will enable it to determine if (and to what extent) any required standards of conduct have already been made clear to the workforce, and to identify the systems in place for handling matters when things go wrong. Many large organisations will have their own codes of practice on conduct of business by staff. In some types of business, regulatory requirements will also have to be considered.
Who should handle disclosures?
One of the chief aims of a whistleblowing policy should be to encourage and facilitate internal disclosure. Employers should be careful to select personnel in whom staff will have confidence, in order to ensure that they feel comfortable making disclosures and that the procedure is workable. It is often advisable to appoint a named individual or individuals outside line management to whom people can raise their concerns. They may be referred to as a “Whistleblowing Officer” or by some other appropriate title. The BSi Code suggests that workers in larger organisations should have the option of reporting concerns to a board director or a dedicated telephone hotline.
What disclosures should be covered?
The concept of a qualifying disclosure in section 43B of ERA 1996 requires the worker to have a reasonable belief that one of six specified situations has occurred, is occurring or is likely to occur. The question for employers drafting a whistleblowing policy is whether to try to limit the coverage of the policy to the types of disclosure covered by the statutory regime. More specifically, should it only cover the types of issues listed in section 43B, and should it require whistleblowers to have a “reasonable belief” before they come forward?
There is a strong argument that whistleblowing policies should cover more than just the matters potentially covered by a protected disclosure under ERA 1996. The statutory framework should ideally be seen as a backstop, not a replacement for a culture where all forms of inappropriate behaviour may be challenged.
Disclosures to regulators or other external organisations
Section 43F of ERA 1996 provides that a qualifying disclosure can be made to a “prescribed” person – mainly regulatory bodies. A wider external disclosure may also, in limited circumstances, be protected.
While employers inevitably prefer workers not to make external disclosures, and may wish to make this clear in a written policy, it is advisable to tread carefully. As the BSi Code points out, deterring workers from making a disclosure to a regulator may trigger the protection for wider disclosure. Furthermore, if a worker does make a protected disclosure to a regulator or other external body, any criticism of that worker for breaching the whistleblowing policy is likely to amount to an unlawful detriment.
Employers sometimes hope to avoid external disclosure of sensitive information by imposing duties of confidentiality on their employees. However, any such duty is rendered ineffective in so far as it purports to prevent a worker from making a protected disclosure.
In order to reassure workers and encourage disclosures, whistleblowing policies should set out the legal protection available to whistleblowers.
Whistleblowing policies should provide details of the steps that a worker can expect an employer to take to investigate a disclosure. Complaints should be investigated promptly so that any delay does not of itself create further grounds for complaint and to ensure that relevant evidence is collected before it is destroyed.
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