Whistleblowing learning points for HR, Pt1

This article was written by Clare McNicholas from the Labour & Employment team at Law Firm Squire Patton Boggs.

Over the last 12 months we have seen a significant increase in queries on whistleblowing in the workplace. It seems that more and more individuals are “blowing the whistle” and claiming they have been dismissed or suffered a detriment for having done so.

In light of this, we have recently run whistleblowing workshops in each of our UK offices. In this blog post and a number to follow, we share some of the learning points for HR from these workshops, together with answers to some of the questions we were asked. As our workshops demonstrated, the law in this area can be complex, but handling allegations of whistleblowing in the workplace doesn’t have to be.

Learning point 1: assume that all workers who raise complaints are protected under the whistleblowing provisions  

Whistleblowing complaints are not always easy to identify. Not all complaints about potential wrongdoing in the workplace will attract protection under the whistleblowing provisions in the Employment Rights Act 1996. The important thing is to take any concerns about potential wrongdoing seriously and to take steps to address them.

Whistleblowing complaints can be made verbally or in writing. They can be made as a standalone complaint or they can be buried in another document, e.g. a grievance letter. Even if workers do not label their concerns as “whistleblowing”, the disclosure of information may constitute a protected disclosure for whistleblowing purposes. Not all protected disclosures are even intended as such at the time – many complainants are just complaining and it does not occur to them until later (perhaps having seen a lawyer) that they may by chance have blown a statutory whistle as well.

We would recommend that employers do not get too tied up at the outset with whether a complaint technically also constitutes a qualifying disclosure for whistleblowing purposes. If there has been potential wrongdoing, this should be investigated. It is also usually safest to assume that the worker is protected under the whistleblowing provisions. The company should therefore be careful to ensure the individual does not suffer a detriment/is not dismissed for having raised concerns. This is discussed in more detail in a later blog.

Some attendees at our workshops said they sometimes found it difficult to decide whether a complaint should be dealt with under the grievance or whistleblowing procedure. Generally, a grievance concerns something that affects the employee personally and does not have wider significance, e.g. where someone believes they are being bullied or discriminated against or the terms of their contract have been breached. Whistleblowing complaints, on the other hand, are raised by those who are concerned about wrongdoing at work more generally, which it is in the wider public interest to raise (e.g. potential fraud, health and safety issues, etc.). Needless to say, the difference is not always clear cut and a grievance may reveal issues that are also alleged or held to be in the wider public interest. (See our blog in July 2017, concerning the Court of Appeal’s decision that the employee’s disclosure about manipulation of profit and loss accounts affecting the bonuses of around 100 senior managers, including his own, amounted to a protected disclosure). The short point is that it doesn’t really matter which policy you use, because the whistleblowing regime is not about how you investigate grievances or disclosures but whether you retaliate against the employee for making them. If you don’t, the process is relatively unimportant.

By far the best defence to a whistleblowing claim is that the dismissal or detriment complained of took place for some reason unrelated to the disclosure. By the time you are arguing over whether the disclosure satisfied the legal requirements to be a “whistle-blow”, you are already on the back foot. If you don’t retaliate, the distinction between personal grievance and protected disclosure ceases to matter.

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