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Whistleblowing policy and procedures for UK employers
For your business, learning of potential wrongdoing being committed within your organisation can be incredibly unnerving. UK law gives certain statutory protections to employees who blow the whistle, which can make you feel as though your hands are tied. However, there are a number of requirements staff must satisfy before they qualify for this protection.
In this specialist guide by our expert team of UK employment law consultants, we explain what whistleblowing is, the laws that exist to protect employees, and how disclosures should (and shouldn’t) be dealt with.
Understanding UK laws on whistleblowing employment law
Whistleblowers are afforded certain legal protections preventing them from being reprimanded, victimised, or let go from their job for speaking out about malpractice. However, for these to apply, the individual making the protected disclosure must:
Be an employee. This covers staff members, apprentices, trainees, and agency workers. The rules are wide enough to cover current and former members of staff, other than those who work/worked for the employer on a self-employed basis.
Reasonably believe they're acting in the public interest. The test for this is not defined in law, but essentially means that the disclosure must have an impact on other people and must not be a personal grievance.
Have a reasonable belief the information disclosed tends to demonstrate past, present or likely future wrongdoing of the following nature.
A criminal offence
A breach of legal obligation
A risk to someone's health and safety
Miscarriages of justice
Damage to the environment
Someone covering up or concealing wrongdoings in relation to any of the above
What is a whistleblowing policy?
It's a policy that helps to encourage your employees to report suspected fraud, corruption, or dangerous activity and provide clear direction for managers on what to do when a disclosure is made. Whistleblowing policies will vary according to the employer’s size and resources and the nature of the organisation but should state:
The types of issues that can be raised
How to raise a concern
How whistleblowers will be protected from victimisation and harassment
The process for evaluating and investigating reports
UK law doesn't require your business to have a whistleblowing policy, but it's good business practice to ensure that you do. This will demonstrate a willingness to listen to staff and encourage them to raise any issues internally. By developing a framework for investigation, you'll be better equipped to remedy any problems that have been identified by the whistleblower.
It's important all employees understand your whistleblowing policy and how it applies to them. The means making sure that the contents of the policy are clear and easy to follow and that the policy is accessible to everyone, perhaps by including it as part of your employee handbook. You should also consider providing training to develop managers’ confidence in dealing with disclosures in a fair and consistent way, as well as training for workers to raise awareness on how to make a disclosure.
How should employers respond to whistleblowing reports?
When a protected disclosure is received by your business, don't ignore it. You should treat the disclosure seriously and react to it promptly. It's good business practice to take the following six steps:
Hold a meeting with the whistleblower to understand the exact nature of the malpractice or wrongdoing. It may be necessary to ask them to provide a statement detailing the basis for their claim.
Make it clear their disclosure won't affect their position at work and provide whatever support they require while matters are investigated, as workers are likely to experience a great deal of anxiety about speaking out.
Investigate the disclosure by interviewing relevant witnesses (maintaining confidentiality at all times) and gathering evidence that supports and challenges the allegations.
Once investigations have concluded, write to the worker who made the disclosure to inform them of the outcome and the basis for your decision.
If the worker’s claims are not found to be substantiated, ensure they are in no way penalised for making the disclosure, unless it can be shown that the worker has deliberately lied or created false information out of malice.
If the worker’s claims are upheld, you must take appropriate action. This may include reporting the matter to an appropriate authority or government department and taking disciplinary action against those involved in wrongdoing.
It's also good business practice to keep a record of any whistleblowing disclosures you receive and details of your investigations, as this'll allow you to demonstrate the employee’s concerns were taken seriously. It'll also allow you to monitor the situation and take further action taken if necessary.
What if I discover an employee is about to blow the whistle?
It's important to stay calm and don't react in a panic. It's in your best interests to listen to what the employee has to say and then:
Write down all the information they share
Treat it as confidential and protect their name
Do not react negatively to the news
You must not fire the employee, demote them, or cut their pay as a direct result of their whistleblowing. If you do, it may lead to serious legal consequences.
What are the legal risks when handling protected disclosures?
Under the Public Interest Disclosure Act (PIDA), employers cannot legally subject workers to punishment, victimisation or otherwise unfair treatment as a form of retaliation for blowing the whistle.
This means if employees have been disciplined, dismissed, or selected for redundancy due to having made a disclosure, employees can submit an employment tribunal claim for unfair dismissal. Unlike ordinary dismissal cases, where there is a qualifying service period of two years, if an employee can show that the main reason for their dismissal was that they raised concerns about wrongdoing at work, they will be able to make a claim for automatic unfair dismissal, regardless of length of service.
This doesn’t mean, however, that someone who has raised a concern under a whistleblowing policy cannot be managed (monitored, disciplined, dismissed, etc.) for reasons unrelated to the complaint, but employers should make sure that these actions are justified and entirely unrelated to their disclosure.
What are the different types of whistleblowing?
There are many different examples, such as an employee speaking out about their employer breaking the law in some way, to an agency worker raising concerns about the conduct of a colleague, manager, or third party. Another common whistleblowing example is employees raising health and safety concerns.
This puts organisations in a difficult position, as the Employment Rights Act 1996 prevents employers from disciplining or dismissing workers for leaving or proposing to leave work "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert." Given the high potential for these types of whistleblowing cases in 2021 and the legal risks involved, it's best to take specialist advice before taking action.
Get expert business support on whistleblowing practices
While nobody wants to hear of malpractice within their organisation, employers shouldn’t fear whistleblowing disclosures. Encouraging workers to raise genuine concerns in good faith will help to promote a transparent and open relationship and allow you to take timely action against those responsible, which will put you in better position to limit reputational, financial and legal damage.
When faced with whistleblowing disclosures, seeking advice at the earliest opportunity is key. If you require support, our Employment Law specialists can guide you through the process and provide valuable reassurance that disclosures are handled appropriately. We can also help you to create a whistleblowing policy to keep you on the right track.
Simply call 0345 226 8393 or request a free consultation using the button below.
FAQs
It's when an employee or worker reports a wrongdoing by the employer they work for. Typical examples of wrongful business behaviour includes criminal activity, health & safety breaches, corruption, or damaging the environment.
An employee will only be protected under whistleblowing laws if the disclosure is made in the reasonable belief that it is in the public interest. This requirement exists in order to prevent situations where a worker’s complaint concerning their own contract or working conditions is made under the guise of whistleblowing. These individual complaints should be dealt with in line with the your workplace grievance procedure.
However, the line between whistleblowing disclosures and individual grievances is often blurred. This is largely due to the fact that the phrase ‘reasonable belief in the public interest’ is not defined in legislation, leaving Employment Tribunals to apply the public interest test without any definitive guidance as to its meaning.
Normally, if a worker has information regarding wrongdoing, a disclosure should first be made internally to your business.
If they don’t feel able to approach you directly, they may be able to make the disclosure to a prescribed person or body. This'll depend on the nature of the business. For example, if the worker is blowing the whistle due to witnessing malpractice in a care home, they may make the disclosure to Safeguarding or the Care Quality Commission (CQC).
If they decide to bypass informing your business and go straight to the press, it's likely they'll lose their legal protections.
It's when an employee or worker reports a wrongdoing by the employer they work for. Typical examples of wrongful business behaviour includes criminal activity, health & safety breaches, corruption, or damaging the environment.
Normally, if a worker has information regarding wrongdoing, a disclosure should first be made internally to your business.
If they don’t feel able to approach you directly, they may be able to make the disclosure to a prescribed person or body. This'll depend on the nature of the business. For example, if the worker is blowing the whistle due to witnessing malpractice in a care home, they may make the disclosure to Safeguarding or the Care Quality Commission (CQC).
If they decide to bypass informing your business and go straight to the press, it's likely they'll lose their legal protections.
An employee will only be protected under whistleblowing laws if the disclosure is made in the reasonable belief that it is in the public interest. This requirement exists in order to prevent situations where a worker’s complaint concerning their own contract or working conditions is made under the guise of whistleblowing. These individual complaints should be dealt with in line with the your workplace grievance procedure.
However, the line between whistleblowing disclosures and individual grievances is often blurred. This is largely due to the fact that the phrase ‘reasonable belief in the public interest’ is not defined in legislation, leaving Employment Tribunals to apply the public interest test without any definitive guidance as to its meaning.
