Legal

Making whistleblowing work for businesses and employees

28 Mar 2019 By Sophie Applewhite and Nuri Mirwani

Does the current whistleblower regime adequately protect employees who attempt to expose misconduct in the workplace? Sophie Applewhite and Nuri Mirwani report

The UK whistleblowing legislation is the Public Interest Disclosure Act 1998. This creates two levels of protection for whistleblowers. The first is that the dismissal of an employee who has blown the whistle will be automatically unfair if they were dismissed because they made a protected disclosure. The second level protects whistleblowers from being subjected to any detriment on the grounds they have made a protected disclosure.

The financial services sector in particular has been the subject of significant criticism regarding the handling of individuals who have reported what they believed to be wrongdoings at banks and other financial institutions. Particularly, whistleblowers have voiced concerns that there seems to be a general sense of reluctance from financial institutions either to take matters forward with the alleged wrongdoer or formally investigate the wrongdoing in the workplace based on the information disclosed. 

Whistleblowers have claimed that this approach fails to protect those who step out of their comfort zone and potentially risk their careers; precisely what the legislation is designed to address. Whistleblowers have also been quoted as saying that their experience after making a disclosure has made them reluctant to consider reporting wrongdoing in future.

Parts of the public sector have also drawn comment from the press. The NHS has been criticised for failing to prevent the appointment of an individual who had apparently victimised whistleblowers in the past to a senior role. The case was alleged to represent a failure by the Care Quality Commission (CQC) to administer the Fit and Proper Person Regulations. These rules apply to individuals at director level across the NHS and aim to ensure those with a prior record of misconduct are unable to secure another job within it. The rules are intended to be referred to during the recruitment process to ensure that any unfit individuals are not appointed to senior roles. 

In this instance, the alleged failure to prevent the appointment of an unfit individual was seen by former whistleblowers as shocking and effectively conveyed the message that those who victimise whistleblowers will not be held accountable. The Parliamentary and Health Service Ombudsman reported on the case and said the CQC needs to review its approach so NHS employees can have confidence in their leaders and be secure in the belief they will not be victimised if they raise concerns. 

Advice for employers

With both the financial services sector and NHS instigating a renewed focus on the way they tackle cases of whistleblowing, it would be prudent for employers in all sectors to review their policies and practices. 

Employers should have a clear and comprehensive whistleblowing policy which sets out the procedure to be followed where an employee has a reasonable concern. Employers should also ensure their employees are made aware of the policy and are provided with the necessary training, guidance and support to be able to come forward and report apparent misconduct. 

It is extremely important for employers to train managers on how to deal properly with an employee who blows the whistle – the potential consequences of failing to do so are high. 

There is often a perception that individuals will only blow the whistle to the most senior members of an organisation or to a sector-specific regulator, but this is not always the case. Any staff with line management responsibilities ought to be able to spot a protected disclosure and deal with it appropriately to minimise the risk to employers. 

Sophie Applewhite is a senior associate and Nuri Mirwani a trainee at Dentons

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