Guidance for employers on whistleblowing – how would you respond?

Last month, the Department for Business Innovation and Skills (DBIS) published new guidance for employers on whistleblowing and a related Code of Practice. This is often an overlooked area within company procedures, so we have examined the benefits of a properly articulated and implemented whistleblowing policy and have provided an outline of what this entails.

What exactly is whistleblowing?

Whistleblowing is the term used when a worker passes on information concerning wrongdoing. To be covered by whistleblowing law, a worker who makes a disclosure must reasonably believe two things:

  1. That they are acting in the public interest (personal grievances and complaints are not usually covered); and
  2. That the disclosure tends to show past, present or likely future wrongdoing in accordance with a number of predefined categories.

Importantly, the Employment Rights Act 1996 (ERA) (as amended by the Public Interest Disclosure Act 1998) provides protection for workers who "blow the whistle" on wrongdoing at work and affords them the right not to be dismissed or suffer any detriment at work as a result of making a protected disclosure, i.e. for “blowing the whistle”

The law does not require employers to have a whistleblowing policy in place, but there are many reasons to have one including:

  • Assisting with compliance and internal control – it perhaps goes without saying that the reporting of concerns makes it easier for management to address and avoid more serious regulatory breaches or reputational damage. In the context of avoiding an organisational crisis, this can often be sufficient justification.
  • Avoiding reputational issues – related to the above, effective internal whistleblowing makes it less likely that a worker will report their concerns externally with the inevitable consequences that this holds.
  • Complying with the Bribery Act – being able to show that your organisation had "adequate procedures" designed to prevent bribery in place is a defence to the strict liability corporate offence of failing to prevent bribery by an associated person. Guidance in this area has stressed the importance of effective whistleblowing procedures as part of this approach.
  • Minimising litigation risk- the protection of whistleblowers (and clear message that this sends) can minimise the risk that they will be dismissed or suffer a detriment leading to a breach of the ERA.
  • It’s an expectation for public bodies - the Government expects all public bodies to have written policies with LAs and the NHS in particular being assessed on their effectiveness.
  • Listed companies – similarly, the UK Corporate Governance Code requires listed companies to have written whistleblowing arrangements in place, or offer a sufficient explanation as to their absence.

As you would expect, most if not all Regulatory Bodies publically advocate the benefits of whistleblowing made within the public interest and will offer easily identifiable channels for employees to contact them upon on any anonymous basis. This offers even more of an incentive to manage these processes internally before reaching this point; whilst rarely will you be required to self-report issues identified through this process, you will always have the opportunity to review the position and initiate any required internal steps in the first instance.

As recognised within the recently issued DBIS guidance, there’s no one size fits all approach to whistleblowing policies. They each vary depending on the size and nature of the organisation.

Our own experience demonstrates the need to review the nature of your organisation’s arrangements to determine an approach that reflects the nuanced operations/structure of your business, and equips those key individuals to process disclosures. It is equally important that any policy is properly communicated to all of employees, along with appropriate guidance so as to facilitate the identification of disclosures.

Having provided a useful introduction to this area, the DBIS Guidance and Whistleblowing Code of Practice articulates those best practice standards that should be reflected into any policy. To help you to assess your compliance with these standards, we have drafted some key questions you should consider when reviewing your own practices and procedures. These include:

  • Is your whistleblowing policy / procedure easily accessible to all workers? How, if at all, do you raise awareness of these?
  • Do you provide training to workers on how disclosures should be raised and how they will be acted upon? Similarly, are managers aware as to how these should be dealt with?
  • Can staff at all levels of the organisation demonstrate that they support and encourage whistleblowing?
  • Can you demonstrate a commitment that all disclosures raised will be dealt with appropriately, consistently, fairly and professionally?
  • What steps are in place to ensure that you protect the identity of a worker raising a disclosure and offer support throughout the process?

The recent guidance provides a useful introduction to those key themes under whistleblowing legislation and possible application to your organisation. For further discussions however as to the benefits of a coherent approach to whistleblowing within your organisation and how these can be effectively yet proportionately achieved, please contact Nicholas Barker for further information.

Make sure to also watch out for next month’s specialist comment upon the recent case of Chesterton Global Ltd and anor v Nurmohamed and what this means for the increasingly wide scope of ‘public interest’ disclosures.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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Steffan Groch

Partner and Head of Regulatory - Head of Sectors

I head up DWF's national Regulatory team as well as leading the firm’s ‘go to market’ sector expertise. I am also Chair of the UK Health and Safety Lawyers Association.