A number of high-profile whistleblowing cases have highlighted the importance of a ‘speak-up’ culture in the workplace. Having a whistleblowing policy is not enough in itself and firms must create effective forums for their people to raise concerns and report wrongdoing.
What is whistleblowing?
Whistleblowing is the term used when someone passes on information about wrongdoing or inappropriate actions. These disclosures happen after an event has occurred and usually, but not always, relate to something witnessed in the workplace.
The disclosure must cover one of the following areas:
- criminal offences (this may include financial impropriety and fraud)
- endangering someone’s health and safety
- miscarriages of justice
- environmental damage
- non-compliance with a legal obligation
- concealing wrongdoing related to any of the above.
It is important to note that disclosures must be in the public interest. There are instances when an employee believes they are blowing the whistle, but their complaint is in fact a personal grievance. This is a critical distinction, as whistleblowing laws do not cover personal grievances.
Whistleblowers are protected - confidentiality clauses do not apply
The following legislation and guidance aims to protect whistleblowers:
- the Employment Rights Act (1996) and the Public Interest Disclosure Act (1998): If a whistleblower is harassed or dismissed, they have the right to appeal to an employment tribunal
- the Enterprise and Regulatory Reform Act (2013): To receive legal protection, a worker must reasonably believe the disclosure is in the public interest
- public Concern at Work - Code of Practice (2013): To help organisations, courts and tribunals to manage whistleblowing more effectively.
It’s not about going to the papers
A whistleblower can make a disclosure to their employer. If this is not appropriate, they may approach a prescribed person relevant to the sector:
- for financial services, the FCA is the prescribed person for the conduct of funds, markets, firms and individuals subject to FSMA, and mutual societies. The PRA covers deposit-taking business, insurance or investment management
- the charity sector has been the focus of a number of high profile whistleblowing cases. The Charity Commission is the prescribed person for related disclosures
- for local authorities, the prescribed persons are the National Audit Office (NAO) or the Public Sector Audit Appointments Ltd (PSAA)
- the public sector and not-for-profit organisations are covered by multiple prescribed persons depending on the issue. This includes education, serious fraud, health and data protection
- the NHS has a national whistleblowing policy. It outlines expectations in the health sector including annual reports, protection and the ability to report concerns using British Sign Language.
The Department of Business, Energy and Industrial Strategy holds a complete list of prescribed personsand the areas they cover.
A whistleblowing strategy – more than just a policy
Organisations should have a robust whistleblowing policy, but that in itself is not enough. The right culture must be in place to allow people to speak up about inappropriate behaviour, without fear of reprisal.
Senior management must proactively shape the organisational culture from the top down. They must establish the necessary strategies, systems and procedures to protect whistleblowers.
Why does it matter?
A ‘speak-up’ culture helps organisations address problems head on. It can lead to improved regulatory compliance and prompt reporting of wrongful activity. An open culture encourages employees to raise concerns before an issue occurs, leading to better customer outcomes and improved conduct. This environment helps people flourish and retains talent in the long term.
What should you do now?
Creating the right environment to raise concerns means creating the right environment to raise reportable concerns. This includes breaches of policies and procedures, or specific behaviour that may harm the organisation.
To achieve this, senior management should address the following:
- establishing appropriate policies and procedures
- raising awareness across the organisation
- training for all employees and management
- communication around the expected practices
- monitoring and governance of whistleblowing procedures
- publicity over the appropriate forums.
To find out more about whistleblowing and how we can help, please contact Rebecca Deane.