- FG Solicitors
Whistleblowing – Is it a courageous act or a malicious construct?
Individuals who wish to raise concerns about ethical standards and legal compliance have had legal protection under the whistleblowing legislation for a number of years.
While there is no legal requirement for employers to have whistleblowing policies, even in the best run organisation things will go wrong from time to time. To effectively manage a concern and protect the business from any legal and reputational impact, all organisations should have such a policy.
At a top level, the whistleblowing policy should confirm a culture of transparency and accountability when it comes to business practices and wrongdoing. Below this, there must be a framework for how an individual can “blow the whistle”, how this will be investigated and how concerns will be resolved. The aim is to be able to capture a complaint before it escalates and manage it.
A trickier issue for employers is how to respond to a trend that has developed over the last few years; individuals when faced with some form of disciplinary action or a performance management scenario will declare that this is retaliation because they whistle blew. In certain cases this could be true but there are other cases where the only motive is to frustrate the internal procedures, which are holding individuals to account for poor behaviour or substandard performance.
This scenario is particularly common where the individual’s length of service is less than two years and they are facing dismissal or have been dismissed. Even employees with less than two years’ service are protected if dismissed as a consequence of raising their public interest concerns. Compensation for financial loss is uncapped and an award for injury to feelings may also be available, which creates a strong incentive to throw the whistleblowing card onto the table; individuals who are minded to do so are acutely aware that employers will feel uncomfortable, given the million pound plus headline making compensation awards that have been seen over the years.
On further enquiry, the employer is faced with reference to a historical incident months old or a day-to-day management discussion, where a difference of opinion has been shared.
While it may well be that this is a malicious construct and the initial reaction would be to dismiss the complaint out of hand and proceed with the current procedure, before doing so, it is prudent to press the pause button, investigate and consider the following:
Does the communication referred to have the potential to be a qualifying disclosure? A qualifying disclosure means any disclosure of information made in the public interest, which tends to show one or more of the six types of wrongdoing or failure the legislation provides for i.e., a breach of a legal obligation, danger to health and safety or damage to the environment. If so, it may well be that the complaint warrants further investigation under the whistleblowing policy.
A whistleblowing policy giving clear examples of what might be a qualifying disclosure and a proper investigation under the policy, will assist to discount whether a qualifying disclosure was ever made.
Are you being swayed by a suspicion that you consider the individual’s current declaration is not based on a previously raised genuine concern but instead to secure employment rights that they would not normally be entitled to. The legislation however favours the individual by providing that a whistleblower only has to show a reasonable belief that the information disclosed indicates there has been wrongdoing. They are not required to act in good faith nor does it matter if they are subsequently found to be wrong.
A proper investigation should instead be undertaken. If you want to argue that the individual has acted dishonestly or untruthfully, there would need to be strong evidence to support this. In the event of a legal challenge and if it can be established that the disclosure was made in bad faith, for example, if the motive behind it is not honest or it has been made for personal gain, there is the possibility that the compensation would be reduced by 25% but it does not negate the complaint.
Could the employee be telling the truth? Could they be the victim of some form of retaliation for blowing the whistle?
The whistleblowing policy is important here as it can act as a management guide, alerting managers to the fact that this is a possibility. More importantly it should explain that detrimental treatment, including dismissal, disciplinary action, threats or other unfavourable treatment connected with a concerns being raised will be unlawful and open to legal challenge in the employment tribunal. Managers also need to know they could be held personally responsible.
Whether the employee has made a courageous communication or a malicious one, it is essential that whatever the context in which it has arisen the organisation reaches for the whistleblowing policy and investigates and only then will the individual’s motives emerge.
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This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.