Whistleblowing defines a protected disclosure as one where the worker reasonably believes it is in the public interest and tends to show one or more of the six types of relevant failures:
• commission of a criminal offence;
• failure to comply with a legal obligation;
• miscarriage of justice;
• danger to the health and safety of any individual;
• damage to the environment; and
• deliberate concealment of information falling within any of these categories.
An increased focus on wellbeing in the workplace in recent years has left organisations open to growing claims from employees about the working practises they are exposed to in their roles. The pandemic is likely to have had an impact on the increase in whistleblowing cases around employee wellbeing, as most companies had to immediately pivot to new ways of working when the UK went into its first lockdown – meaning tried and tested ways of maintaining employee wellbeing were flipped on their head.
We do also unfortunately see more sinister forms of employee wellbeing being compromised – namely through bullying and harassment. More often than not, bullying and harassment will take the form of offensive, insulting or intimidating behaviour, and can come about as a result of someone’s race, gender, sexuality or disability, to name but a few. These behaviours can be explicit in their nature (ie, name calling) but will often be more subtle, which can make it more difficult for employees to come forward as the evidence they have is potentially less tangible than more blatant forms of bullying/harassment. Such incidents tend to be more isolated than health and safety concerns, for example, which again may make an employee less comfortable in coming forward with claims as they possibly won’t have shared experiences with any of their colleagues.
Another area in which we are seeing a lot of whistleblowing cases is discrimination, which can often be seen as a pattern of behaviour in cases relating to bullying and harassment too. Discrimination can be blatant in relation to any of the characteristics listed above, but can also be more nuanced to cases where employees may miss out on promotions or other opportunities because of protected characteristics – and this can be harder to prove.
Health and safety is of paramount importance in the workplace, but some organisations occasionally fall below the standards they should be setting for employees, therefore it is unsurprising this is one of the main areas in which we see whistleblowing cases. Again, this became more and more prevalent during the pandemic, where government guidelines dictated certain necessities, which some employers failed to abide by. Not only do health and safety whistleblowing claims relate to staff safety, but employees are increasingly bringing cases where there is concern for other stakeholders. For instance, we recently supported a case regarding patient safety at a hospital on behalf of a surgeon, which the whistleblower ended up winning – and this is a type of case we’re seeing more and more of.
Whistleblowing cases can be detrimental to the organisations they’re brought against, both from a financial and reputation point of view. Therefore, it’s essential organisations do all they can to create an environment and working culture that limits the potential exposure to claims being brought against them. Steps organisations can take include:
Making sure processes and policies are watertight and showcasing best practice: many whistleblowing claims come about as a result of lax implementation of policies. Therefore, it’s important to have strong, watertight policies which are correctly followed by everyone in the organisation – which will help to limit the potential of any wrongdoing taking place.
Creating a ‘speak up’ culture: business leaders should listen and take on board the concerns of their employees, and employees should feel confident to raise issues without feeling like they will be judged negatively for doing so.
Having a clear reporting structure for issues: ensure employees know who to raise issues with and the procedure they need to follow to do so. Having a specific policy in place will allow organisations and employees to keep an official trail of complaints and how they’re dealt with.
Being objective and taking all complaints seriously: employers should not judge claims by the standards of the individuals dealing with them; it is important to be objective and see the issue from the employee who is bringing the claim’s viewpoint. What may be trivial for one person can be a big issue for someone else. Additionally, it is important employers are able to readily identify when a complaint or grievance is a protected disclosure as there is no requirement to label it as such when making a complaint.
Taking regular temperature checks of how employees are feeling in their jobs: issues that lead to whistleblowing often fester over a period of time, so having regular check-ins with employees can help to spot issues early and deal with them. These check-ins can be in the form of one-to-one meetings, all-employee surveys and/or focus groups.
Guy Guinan is an employment partner at Gateley Legal