Whistleblower complaints and how to deal with them

Ed Mills and Anna West provide guidance for employers on how best to deal with workers making a protected disclosure

Whistleblowing policies and procedures are an important part of establishing a ‘speak up’ culture (and they are a regulatory requirement for some financial services firms). 

Legal landscape

A worker is a whistleblower if they make a disclosure which is: 

  • about a criminal offence, breach of a legal obligation, miscarriage of justice, risk to health and safety or to the environment (or a cover-up of any of these); and
  • in the public interest; and
  • made to their employer or legal adviser or relevant regulator.

Whistleblowers who suffer detriment or dismissal for having blown the whistle can claim uncapped compensation for their financial loss. They can also claim interim relief which, if granted, means that their salary continues to be paid by their employer up to the date of the hearing. Claims can be brought against the employer and any individuals involved, such as a manager. 

Policies and training

In recent years, employers have increasingly been taking proactive steps to encourage employees to raise any concerns they may have about any workplace issues, and not just those which fall within the legal definition described above. 

The starting point is to have a whistleblowing or ‘speak up’ policy which commits to a culture of openness, sets out internal and external whistleblowing channels, explains how complaints will be addressed, and makes clear that any retaliation against a whistleblower is a disciplinary matter.

Training in the policy is also key. A survey by whistleblowing charity Protect found that 93 per cent of employers had whistleblowing procedures in place but only 43 per cent of employees were aware of whistleblowing policies at work. 

Managers are the ones most likely to be on the receiving end of a whistleblowing disclosure, and it is essential that they are trained on how to recognise and respond to these complaints, and how to foster a ‘listen up’ culture across management. It is also a good idea for all other employees to have training as well, so they know how to raise concerns. If employees at all levels of seniority are trained together this can help to demonstrate business ‘buy-in’ to the process. 

Handling whistleblowing complaints

A whistleblower might decide to raise their concerns anonymously, which can make the investigation more difficult. The employer may not be able to go back to the whistleblower for more information, or the individual may be unwilling to disclose any more detail.  Policies and training should make clear that investigations may be limited in these circumstances and should encourage employees to provide as much information as possible.

Similarly, a whistleblower may ask for their identity to be kept confidential. This is not always possible as it may become evident during the investigation who raised the complaint. It is important to make clear to employees that confidentiality will be respected as far as possible but cannot always be guaranteed.  

Keeping the whistleblower informed is important to maintain their confidence in the procedure. It may not be possible to give details of the investigation, but the employer can confirm the investigation is underway, and afterwards that it has concluded and thank them for raising the issue. Maintaining a dialogue also helps to encourage the whistleblower to report any concerns about retaliation. 

More generally, some employers choose to report internally to staff on the number of concerns raised through the whistleblowing channel each year and the fact that they have been addressed, which helps to show employees that using the process does make a difference. 

Future of whistleblowing

The All-Party Parliamentary Group on Whistleblowing is reviewing the law and making recommendations to the government, so we may see a strengthening of the current rules.  For employers with businesses in Europe, the EU Whistleblowing directive, which has to be implemented in December this year, will be relevant. This requires employers with 50 or more employees to establish internal whistleblowing procedures. 

In any event, whistleblowing is likely to remain firmly on the HR agenda in light of the current spotlight on workplace culture and the wish to persuade staff who have concerns that ‘speaking up’ through the designated channels is the most effective way to resolve them. 

Ed Mills is a partner and head of employment, and Anna West knowledge counsel, both at Travers Smith