Whistleblowing appears to be a growth industry. Certainly, it is a highly newsworthy topic, especially following Edward Snowden’s revelation of some of the US National Security Agency’s activities, which embarrassed the USA and allied governments. Focus this down onto your own organisation and recognise that an employee with a grudge could greatly harm your organisation, even if the revelations are false, says Bob Patchett. Regrettably, humans maintain a belief that where there is smoke there is fire.
Historically, the problem surrounding whistleblowing has been the conflict between a person’s duty to society and to his or her employer. If the only way your employer can maintain a viable business and keep 20 people employed is by illegally dumping a hazardous substance where it could pollute a waterway, where does your duty lie? Easy to answer in principle, but in practice? There have been cases where an employee has done his or her civic duty by reporting an employer’s malpractice but as a result has been fairly dismissed for breach of contract. This conflict has been resolved by the Public Interest Disclosure Act 1998 (PIDA), which protects the worker who does the socially right thing in the right way.
Protection is given to workers, including employees, ex-employees, agency staff and casual workers, who make a qualifying disclosure, that is to say, they have a reasonable belief that something that is happening or about to happen is a criminal offence or failure to comply with a legal requirement, a miscarriage of justice, damaging to the environment, or will present a health or safety hazard. The person should hold a genuine belief that disclosure is in the public interest. Subsequent evidence that the concern was unfounded does not invalidate the person’s action. To retain protection, the worker should disclose the concern to the employer or someone specifically appointed by the employer to receive disclosures, to the person responsible for the problem, to a legal advisor, to a specified appropriate external body such as the Health and Safety Executive, Data Protection Registrar or to the Environment Agency, or to a government minister if the employer is a ministerial appointment. The disclosure should, in the first instance, be made to the employer or the specified body unless the person has a well-grounded fear of doing so or believes that evidence will be concealed, or has already raised the issue and believes that no remedial action has been taken, in which case the disclosure may be made to the appropriate higher authority. If the issue is especially serious, the worker could bypass these procedures and report the matter to the press or other media. However, in all cases the worker’s beliefs and actions must be reasonable in terms of the validity and seriousness of the concern, the probability of the issue recurring, the appropriateness of the person to whom the disclosure was made, and the extent to which he or she has complied with the employer’s whistleblowing policy, assuming that the policy itself is reasonable.
If the worker complies with these requirements, then he or she is protected against any form of detrimental reaction by the employer or by colleagues. Should the employer dismiss the employee for making the disclosure, the dismissal will be judged automatically unfair. If detriment is caused by colleagues, the employer’s defence would need to be that it had taken all reasonable steps to protect the worker. In cases of detriment or unfair dismissal, there is no limit to the compensation a court may award.
The rights outlined above, however, represent only part of the topic because, although they set out the rights of the worker, they also indicate his or her responsibilities for making any disclosure in the proper way. Conversely, the employer has the right to be protected against improper or inaccurate revelation of what goes on within the organisation and, of course, has a responsibility to conduct business such that no valid complaints should be made. The best defence against improper disclosures is a robust policy setting out workers’ rights to register complaints or concerns and precisely how they should do so. A notice or a paragraph in the employee handbook is not enough; you should explain the procedure clearly to every worker, certainly during induction but repeat it regularly. Explain to managers at all levels how they should handle complaints, bearing in mind that what might be viewed as a Monday morning gripe may constitute the first stage of a protected disclosure which, if not handled appropriately, might become a newspaper headline.
Ideally, train your managers such that they can handle the whole disclosure case, that is to say, make notes, investigate the issue, put the matter right and finally demonstrate to the employee that all is in fact well. However, this is both a complex and urgent topic. Therefore, you may choose to appoint a suitably trained senior executive to manage the process. Your managers should immediately report to him or her anything that may be a PIDA disclosure, and the appointed executive would then direct who should do what to investigate and resolve the matter. You would, of course, need to appoint a deputy to handle matters in the absence of the appointed executive.
Protect yourself against possible disclosures by carrying out regular health and safety inspections and hazard assessments, by putting workers in the picture about any new processes or materials you employ, and by giving everyone opportunity to air concerns in, say, section briefings.
If, despite this, someone makes a public disclosure, react immediately. You may engage a public relations expert, but otherwise quickly go public with a statement refuting the claim in detail — a simple denial is insufficient — or saying convincingly how you are investigating the matter. Any delay or woolly statement will be viewed by the public as guilt. Check all places where the disclosure has or may be made such as all the newspapers, local radio and television, and especially social media, such as Facebook or Twitter. This media is global and instant and, therefore, can do immense damage to your reputation even if the complaint subsequently can be proved to be invalid. Be as open as you can be. Invite the press or even the general public onto your premises to see for themselves that the complaint was unfounded or has been permanently rectified; the inconvenience and risk to privacy is eclipsed by the threat to your reputation. Indeed, a well-managed open event could be used to project to the world the great things your organisation does.
And if the complaint was unfounded, what to do about the person who made it? Your wish for a hanging might be understandable, but go easy. First, if the disclosure was made in good faith, the person is protected. Second, demonstrate that workers who have a genuine concern can raise it without fear though should do it properly. If you are sure that the worker acted maliciously, give him or her a good talking to, but use discipline as a last resort.
So get your policy and practice sorted — and make sure that you have nothing that people could complain about.
Last reviewed 21 August 2015