Whistleblowing and the implications for your business

The recent revelations from Dominic Cummings have sent shockwaves throughout the Conservative party – calling into question the prime minister’s fitness for the role.

Among the allegations, Mr Cummings stated that Mr Johnson’s reluctance to put the country into lockdown resulted in “avoidable deaths”.

But are these the words of a disgruntled ex-employee, or genuine whistleblowing?

Whistleblowing: The Definition

“By definition,” says Tara Phillips, Senior HR Consultant at Altum HR, “whistleblowing pertains to raising one or more of six prime concerns, under the Public Interest Disclosure Act 1998.”

Under the act, whistle-blowers are legally permitted to go public with information relating to:

  1. Any criminal offences a business has committed
  2. Failure to comply with any legal obligations
  3. A miscarriage of justice
  4. A breach of Health and Safety regulations
  5. Damage to the environment
  6. Concealing information relating to any of the above mentioned categories.

“The whistleblowing process is there to allow people to disclose unethical conduct,” says Tara. It’s important to note that the concerns do not always have to come from employees. They may also come from external consultants, agency staff, visitors, or even the general public.

“The problem with whistleblowing is that these issues aren’t always raised internally,” warns Tara. In theory, this could lead to problems escalating and potentially causing harm to employees or the general public.

Whistleblowing or personal grievance?

What’s important to distinguish is the difference between a genuine whistleblowing claim and a personal grievance. Tara adds that companies should have a clear grievance policy for employees, allowing them to voice their concerns before they turn malicious.

If the concern they are raising is genuine, then it will be classed as whistleblowing and the employee will have access to rights and protections. However, if claims are exaggerated or plainly untruthful, the employer has a legal right to pursue disciplinary action. The burden of proof is on the employer to refute that staff member’s claims – and good record-keeping can help with this.

Similarly, external stakeholders, such as consultants and agencies, face further legal action if their claims are unfounded. For example, managers could take legal action under the Defamation Act 2013. This would take the form of the ‘DIP test’ – for a case to be classed as defamation, it must be:

D – Defamation: causing somebody to be shunned, discredited or exposed to ridicule/contempt

I – Identified: the organisation or individual must be named

P – Published: the information is publicly available (note the difference between libel and slander – libel is a permanent form of defamation, such as a published news article, whereas slander is transient, such as a spoken comment).

While the burden of proof is on the company, not the accuser, there is little argument for employees or other stakeholders to make fraudulent claims. It could result in legal action to the detriment of both parties.

What should my firm do?

Whistleblowing should not be considered a threat to organisations. It is a legal right and it encourages employers to behave legally, fairly and ethically. Rather than trying to recover from reputational damage after a whistleblowing claim, firms should do everything in their power to prevent them:

  1. Have clear whistleblowing and grievance policies.

Whenever you take on a new employee, agency or third-party consultant, you should provide written evidence of your company’s whistleblowing and grievance policies. All stakeholders should feel confident to be able to communicate their grievances before they turn into a full enquiry. Likewise, they should be aware of their rights. For example, it is illegal to terminate an employee simply for making a whistleblowing claim.

  1. Keep stringent records of your company practices.

To avoid any potentially unethical, illegal or unsafe behaviour, you should carry out regular audits and publish your findings. Examples of this include Health and Safety reports such as risk assessments, or gender pay gap reports.

The HMRC is a recent example of this, following allegations of firms taking advantage of the furlough act. As a result, they now publish monthly reports on claimants, which are in the public domain.

  1. Take whistleblowing claims seriously.

Remember, if whistleblowing claims are raised, the burden of proof is on the employer. This may incur considerable costs, for example, running forensic accounts checks, so you should be prepared for this. Once again, you can avoid claims by behaving responsibly and remembering the above mentioned six complaints.

Landmark cases

For more information about whistleblowing allegations, you can read up on these landmark cases, affecting some of the largest organisations in Britain:

  • Royal Mail Group Ltd. v. Jhuti
  • Kilraine v. London Borough of Wandsworth
  • NHS Manchester v Feccitt.

At Altum HR, we’re here to help you keep your firm compliant and put your employees’ needs first. We specialise in dispute, conflict and process management. Get in touch with us today for your free consultation.

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