Vanessa James, Partner, Ashfords LLP discusses the importance of whistleblowing policies at work
With an EU directive having been passed (due for implementation in 2021) to improve whistleblowing protection, there have been reports that as many as two thirds of EU companies do not have whistleblowing processes in place – although the UK appears, in general better prepared that its EU counterparts. Due to the UK’s pending departure from the EU, it is as yet unclear whether the UK will implement the 2021 changes imposed by the directive, but the existing position in UK Law recognises the need to have clear processes for whistle-blowers anyway and has for some time ensured that whistle-blowers have protection from detrimental treatment due to any ‘qualifying’ complaints they have made.
Therefore, irrespective of the 2021 implementation of the directive all UK companies should not only have a whistleblowing policy but also a strategy of ongoing active implementation. It is not just about the whistleblower feeling safe to raise concerns but the nature of what can come to an employer’s attention where they have good systems for genuine whistleblowers, such as revealing fraud, theft and bribery to which the employer would have otherwise been oblivious. So a good process and secure channels for whistleblowers is a valuable risk management tool for an employer as well.
There are, of course the standard elements that will be found on a whistleblowing policy template, such as where to report issues, the stages of the process and reassurances that whistleblowers will be protected from reprisals. But for it to be effective this must be supported by consistently communicating the policy to staff to ensure they are always aware of it and providing them with the means to make the whistleblowing disclosure easily and securely.
The whistleblowing process must be different to other policies such as say, a grievance process where a degree of effort and commitment is required for the employee to draft and formally lodge the grievance which would include ‘putting their name’ to it. Also, such a grievance process would confuse the separate issue of the employee’s relationship with the company which, in the most part, should be separate to any whistleblowing disclosures they wish to make which by their nature would normally be about the practices of others.
The nature of whistleblowing should, in the most part be where an employee, the Whistleblower, sets out their concerns which they then give to the employer who then decides how to address it. In other words the whistleblower does not have ownership of the disclosure after that and other than being interviewed in an investigation (if that is necessary) they would probably not have much more involvement leaving it for the employer to address. It is this distinction which demonstrates how important it is that employers have a robust separate whistleblowing process that makes reporting straightforward and, where possible anonymous (such as the anonymous telephone line).
Unfortunately, from time to time employees may seek to assert whistleblowing protection in circumstances where the employer considers this unjust or where it is a veiled attempt by the employee to detract from their shortcomings that the employer may have been genuinely seeking to address. Ensuring there is a robust and clear whistleblowing process that is different and separate to the line management of the whistleblower will assist in unravelling such situations.
Vanessa is a Partner in the Employment Team at Ashfords Solicitors