Whistleblowing – research update

Changes to the law on Whistleblowers that were introduced in June 2013 should have led to employers reviewing and updating their policies in line with the legislation changes. However recent international research by Freshfields Bruckhaus Deringer has highlighted that in more than half of the Companies surveyed there was no whistleblowing policy or where there was, it had not been publicized. It would appear that the law is not enough to protect whistleblowers without a culture change in the workplace as three quarters of the HR professionals questioned felt that Senior Managers would either treat them less favourably or find ways to dismiss them if they were to “blow the whistle”.

The research also highlights that most Companies are not well prepared to deal with issues raised by their employees and that some Companies were still actively discouraging staff from raising issues of “wrong doing”. Employers need to create a culture where employees are both protected and encouraged to raise issues of concern and a starting place for this would be the publicized introduction of, or review of a whistleblowing policy .

The 2013 changes meant that there was no longer a requirement for the employee to raise a whistleblowing issue in “good faith” in order to be protected from dismissal or detrimental treatment because they have spoken out. This means that any references to whistleblowing disclosures being made in “good faith” or in other words with “honest intent” should have been removed from policy documents.

Instead protection was given to the “qualifying disclosure”of any information that an employee reasonably believes is made in the public interest. Although there is no definition of what constitutes public interest, it is implicit that one effect of the “public interest” requirement is that employees are generally prevented from speaking out about things of a purely personal nature. For example a grievance by an employee regarding breaches to their own contract of employment would not be considered to be in the public interest. Policies should have also been updated to include an explanation of what constitutes a protective disclosure and to also make clear that complaints of a personal nature can be raised through the company grievance procedure.

Additional protection was also included to prevent whistleblowers suffering any detrimental treatment, bullying or harassment from another employee or employees because they have spoken out. Before the 2013 amendments, this protection only covered adverse treatment in relation to the activity of the employer. This meant that disciplinary policies should also have been updated to make clear that subjecting a colleague to detrimental treatment because they have blown the whistle is a disciplinary offence. In addition the employer will also be vicariously liable for any such treatment unless they can clearly demonstrate that they took all reasonable steps to prevent such detrimental treatment from occurring. Adherence to the companies whistleblowing policy for example may provide such a defence.

Compensation at an Employment Tribunal in a successful whistleblowing case is unlimited and so in some instances this could be a substantial amount. However it should be noted that if an employee is dismissed or suffers detrimental treatment and are found not to have acted in good faith by the Employment Tribunal then any compensation awarded can be reduced by up to 25%.

Given the high level nature of certain whistleblowing issues such as fraud, corruption and other criminal activities as well as the potential for high costs including reputational damage, the importance of establishing an adequate whistle blowing policy should be recognised at the highest level within a Company.