Whistleblowing: why are claims increasing and what's the best way to respond?

The economy is beginning to flounder and many organisations are taking measures to streamline their businesses. Over the last month or so, we've seen a surge in the number of people who believe they've been selected for redundancy, or otherwise treated badly, because they've 'blown the whistle' about malpractice in their organisation. Common complaints are that employers have defrauded HMRC in respect of the furlough scheme; haven't followed government advice about lockdown and travel; and haven't taken proper precautions to protect staff who have returned to work.

An employee can usually only bring a claim for unfair dismissal if they have worked for the same employer for two years. However, that rule doesn't apply if they can show they were dismissed in retaliation for making a protected disclosure. There's also other significant advantages if they can link their dismissal to their disclosure. If they succeed, compensation is not capped and they can recover their losses. Plus, if they are really quick off the mark, they can apply to the tribunal for interim relief - which, if granted, suspends their dismissal. This means they must continue to be paid until the tribunal has determined their claim - which could take until 2022 (see our earlier blog).

Tips for dealing with whistleblowing complaints

1. Don't get hung up about the legal side of things (at first)

An employee can only gain protection as a whistleblower if they jump through a number of hoops. Broadly, they must disclose information which they reasonably believe is in the public interest and tends to show one one or more of certain types of wrongdoing including criminal offences, failing to comply with legal obligations, miscarriages of justice, endangerment of health or safety, damage to the environment, or deliberate concealment of any of these things. They then have to tell the right person - which in most cases is their employer.

They don't have to put their concerns in writing and they may disclose things over a period of time and/or to different people. 

If you take an overly legalistic view of whether their disclosure is likely to be protected before deciding how to deal with it, you are likely to lose sight of the issue and fail to deal with it appropriately. At this stage it's much better to take it seriously and deal with it as though it is protected.

2. Ask for more information

If it's not clear what the employee is alleging, ask them to clarify their concerns so that you can investigate. For example, if your employee alleges that you have not made your workplace 'Covid secure', it's perfectly reasonable to ask them to explain what they believe you haven't done.

If they are genuine, they should be willing to respond.

3. Speak to the person accused of wrongdoing

An employee is protected if you or your staff retaliate against them either by dismissing them or by subjecting them to a 'detriment'. Detriment is given a very wide meaning and, in this context, can include being told off or sidelined etc.

Anyone who is accused of wrongdoing is likely to be upset and may be tempted to remonstrate with the complainant - particularly if they think they are making trouble for personal gain and/or their allegations are without merit. It's therefore important to speak to them first to remind them not to do anything that the whistleblower could reasonably construe in a negative light. If they ignore your advice (which is best put in writing so you've got a record) you may be able to use this to avoid liability and shift the blame onto that individual. 

It's probably also worth emphasising that the whistleblower doesn't have to be correct in what they are saying provided they have a 'reasonable belief' in the truth of what they have alleged. 

4. Don't get sidetracked by the manner in which someone makes a disclosure

It can take an enormous amount of courage for someone to raise a genuine issue and many people are worried about how they will be treated afterwards. There are many, well publicised, accounts of people who have raised legitimate concerns who are ostracised and driven out of their organisations. 

Not everyone will get the tone right and may behave in a way that is less than ideal. Accept that they may not be fully in control of their emotions. Unless their behaviour is completely unreasonable (such as threatening violence rather than using intemperate language), don't discipline them as this will amount to a detriment. 

5. Don't allow the whistleblower to dictate how you deal with their complaint

As indicated above, anyone who makes a disclosure is protected if they are subsequently dismissed or are subjected to a detriment. Your responsibility is to look into their allegations and decide how to respond. You may want to keep them informed about your investigation, but they can't insist on being present when you interview others, or signing off on the decision you reach.

6. Don't let the fact that someone has made a whistleblowing complaint hijack your plans

People will often make a protected disclosure in the hope that it will delay or avoid them being included in workplace change or give them leverage to negotiate an enhanced exit package.

Even if someone has made a protected disclosure, it doesn't mean that you can't continue with plans that effect them. For example, if you need to make redundancies, you do not need to exclude the whistleblower from the pool for selection. Provided you follow a fair selection procedure, you should be okay. However, you will need to document why you selected the whistleblower and be able to demonstrate that your decision was not affected by their disclosure. Take advice if you're not sure.

7. Make sure you follow your policy

Most organisations have whistleblowing policies which set out the standards they will follow when complaints are raised. If you have one, make sure you follow it. A policy will help you to manage the expectations of the person making the disclosure and will also remind other staff who may be affected, that they must not retaliate and what may happen if they do so.

Need more information?

We are experts on whistleblowing and can help you understand and apply the law. Please contact Glenn Hayes for more information. 

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If you are interested in finding out about how we can support you with our fixed-fee annual retainer, or flexible discounted bank of hours service, please contact Gareth Finney: gareth.finney@irwinmitchell.com; mobile number 0778 317 0084. 

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