What does whistleblowing in the workplace look like? Simon Rowse, Director of Safecall, a provider of independent whistleblowing services, explains how whistleblowing works in practice and what whistleblowing arrangements employers should put in place.

What is whistleblowing?

The term whistleblowing often evokes thoughts of political scandal, secret dossiers and grand conspiracies.  But while it may be far less glamorous in a business context, often being referred to as ‘speaking-up’, ‘confidential reporting’ or ‘raising a concern’, good quality whistleblowing arrangements can safeguard your organisation’s culture, productivity and reputation.

The legal definition

There are two primary pieces of legislation relating to whistleblowers in England and Wales:

• Employment Rights Act 1996
• Public Interest Disclosure Act 1998 (PIDA)

In order to receive the protection offered by this legislation the person raising the concern must  reasonably believe they are acting in the public interest, that they are not acting on a personal grievance or for personal gain, and that the activity or wrongdoing falls into one or more of the following categories:

• criminal offences, including fraud
• failure to comply with an obligation set out in law
• miscarriages of justice
• endangering someone’s health and safety
• damage to the environment
• covering up wrongdoing in the above categories

A concern which meets these requirements is called a ‘protected disclosure’, but regardless of whether it is a ‘protected disclosure’ or not, it is vital that an organisation handles all concerns correctly and the person raising a concern does not suffer detriment or dismissal.

It’s important to note that when companies are unable or unwilling to protect employees who report misconduct, that employee can make a claim to an employment tribunal and seek compensation for the loss suffered. As with discrimination claims, there is no cap on the amount of compensation which can be awarded. In 2020 alone, there were over 3,000 employment tribunals relating to whistleblowing, up from around 1,500 in 2016.

How does whistleblowing work in practice?

In practice the use of whistleblowing arrangements is wider than the legal definition. Most organisations do not ask their employees to determine whether their concerns are likely to qualify as a ‘protected disclosure’, mainly as the public interest test is not straightforward.

As such, most employers encourage serious misconduct reporting through their whistleblowing arrangements with little reference to the legal definition. Typical concerns reported via whistleblowing arrangements include:

• fraud or theft
• bribery and corruption
• bullying and harassment
• discrimination
• health and safety issues

The act of reporting a concern via an organisation’s whistleblowing arrangements does not automatically qualify the concern as a ‘protected disclosure’. However, employers should:

• protect whistleblowers – ensuring that the whistleblower is protected from detriment, regardless of whether the case is likely to qualify as a protected disclosure
• safeguard confidentiality – the identity of all parties should be protected as far as possible
• communicate – receipt of the case should be acknowledged and the whistleblower should be provided with further updates when appropriate

Whistleblowing or grievance

It’s important to remember that there is typically a significant difference between a whistleblowing case and a grievance. Grievances are typically between the employee and employer, while whistleblowing cases are usually concerns of one employee about another reported to the employer. In this sense whistleblowers are trying to protect the organisation by exposing wrongdoing which is unlikely to be sanctioned by the employer.

Employers should put in place separate arrangements for employee disciplinary and grievances. ACAS have produced a Code of Practice on this topic, adherence to which is considered favourably by employment tribunals.  Failure to comply with this code may prompt an employment tribunal to increase any award made by 25 per cent. 

What whistleblowing arrangements do employers need?

Currently, there is no legal obligation to put any specific whistleblowing arrangements in place – instead there are a range of regulatory requirements depending on market sector and geographical jurisdiction. However, it is considered good practice to provide policies and procedures which allow employees to raise any concerns of wrongdoing in the organisation.

Implementing effective Whistleblowing Policies and Procedures demonstrates an employers’ commitment to listen to their workforce. This is helpful in several ways:

• maximise the organisations chances of detecting and resolving wrongdoing
• demonstrate a commitment to good governance to stakeholders
• safeguard organisational performance and culture
• comply with relevant regulations, standards and accreditations

Employers should ensure that they have in place effective arrangements to allow their employees to report wrongdoing in their organisation. This is best achieved by:

• putting in place robust and accessible whistleblowing policies and procedures
• offering a range of reporting channels
• investigating the concerns thoroughly and impartially
• protecting the reporting person from retaliation or detriment
• communicating with the reporting person
• keeping records of actions taken and decisions made
• concluding the case and managing outcomes

Putting the above in place will help employers to maintain a healthy productive working environment and help safeguard against misconduct of all types.

About the author

Simon Rowse is a Director of Safecall. Safecall provide independent whistleblowing services including whistleblowing hotlines, whistleblowing training and whistleblowing investigations.

See also

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A beginner's guide to payroll software

How to combat post-lockdown anxiety in your workplace

Find out more

Employment Rights Act 1996 (Legislation)

Public Interest Disclosure Act 1998 (Legislation)

Make a claim to an employment tribunal (GOV.UK)

Code of Practice on disciplinary and grievance procedures (ACAS)

Image: Getty Images

Publication date: 30 April 2021

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.