Whistleblowing

Predictably we are now receiving more enquiries about whistleblowing or, in the jargon, making a protected disclosure.

Why was this predictable? Because over the last 20 years most businesses have swung from well-intended and supportive personnel management to Hard HR, in which the core role of HR is to implement top management’s strategic objectives come what may. This is not to say that everyone working in HR behaves inappropriately; junior managers and other staff don’t set policy parameters or make their own decisions: they have to do what they are told. Thus, the shocks and pressures of the workplace that used to be absorbed or at least mitigated by personnel managers are now transmitted directly to employees without much ‘cartilage’ to ease the discomfort.

In that environment, it’s not surprising that people who find themselves lectured about proper and improper behaviour on a daily basis look at their employers and their superiors and ask the question: is what I am being asked to do, ethical, lawful and consistent with the rules set by regulators? If the answer they get is No, whistleblowing becomes at least a possibility.

What is a Protected Disclosure?

A protected disclosure gives an employee or worker (someone in between employee and self-employed) protection against dismissal or other detriments as retaliation for that individual having made a disclosure. The legal framework for this is in the Employment Rights Act 1996.

Sounds simple, but there are strict rules governing what is and is not protected. To qualify as protected, a disclosure must be in the public interest and tend to show either:

• That a criminal offence has been committed, is being committed or is likely to be committed,
• That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
• That a miscarriage of justice has occurred, is occurring or is likely to occur,
• That the health or safety of any individual has been, is being or is likely to be endangered,
• That the environment has been, is being or is likely to be damaged, or
• That information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

A disclosure can be made to your employer or someone else if that person or organisation has legal responsibility for the conduct you are disclosing.

Importantly, the employee or worker must have a reasonable belief that one of the failures above has occurred or will occur. The employee or worker does not have to be right, only to have a reasonable belief.

Affinity’s Policy on Whistleblowing

The first and perhaps most important thing to stress is that we do not solicit disclosures in the way that some campaigning groups often appear to do. The legal provision is an important safeguard for employees and workers and is obviously not there to be used as a political weapon.

Equally, we are not prepared to support cases of alleged whistleblowing where the motive appears to be the settling of scores or what is best termed ‘financially oriented’ litigation.

Possibly for the right reasons, organisations usually say they encourage employees to speak up when they are concerned about some aspect of their work and working lives. This has however often been implemented with a degree of naivete in some organisations, that means that a member of staff only has to make the most trivial or concocted allegation, for someone in HR or management to rush on to the offensive, when it would be better to tell complainants to grow up!

Affinity will only support cases where we are able to work with members to manage disclosures before they are made. This allows us to ensure all the legal tests are met and that the disclosure is made to the right individual or individuals so that the member is protected. Picking up the bits after things have already gone wrong simply creates unnecessary and very expensive work.

Finally, we will not represent new members with issues, whose origins pre-date their membership.

The Protection

The remedies for employees or workers who make protected disclosures are considerable and employers with any sense will seek legal advice before reacting to a whistleblow. There is no qualifying period of employment before a claim can be made.

Members may remember the case in Barclays Bank where the then Chief Executive, Jes Staley, tried to identity a whistleblower. To quote The Guardian newspaper:

“Staley has been fined a total of £642,430 by the Financial Conduct Authority and the Prudential Regulation Authority, and Barclays has clawed back £500,000 of his bonus over the matter.

The bank will also have to report annually to the regulators detailing how it handles whistleblowing after they expressed concerns about its existing systems.”

On top of this sort of punitive action by regulators, businesses and other organisations are open to unlimited damages at the Employment Tribunal. Anyone in HR (definitely) and any employment law enthusiast (with 10 minutes to spare) will find the Supreme Court case of Jhuti v Royal Mail Group Limited worth reading about. An excellent article by Beth Hamilton, an employment lawyer at Winckworth Sherwood LLP, explains the key issues very clearly https://wslaw.co.uk/blog/whistleblowing-remedies-a-warning-to-employers/. It illustrates how unwise an employer can be and the cost of defying the law – in this case £2.3 m in compensation plus legal costs.

One Very Important Consideration

Most large employers have whistleblowing policies which, to the uninitiated, may give the impression that they want staff to blow the whistle on wrongdoing. They do and they don’t and a realist will see that a central objective of most policies is almost certainly to give the employer control over events. That may not be in the interests of the whistleblower.

Yes, a shop, a bank or a bookmakers will want to be told if someone is stealing money, and understandably so, but if you work in the finance sector you should not assume that your employer will want to hear your views on mis-selling for example or breaches of the Financial Conduct Authority (the FCA)’s rules around Consumer Duty which require them to treat customers in good faith and deliver fair outcomes.

Indeed, I would go as far as to say that in many companies there is a clear separation in terms of treatment between profitable breaches of regulatory rules that were obviously sanctioned or countenanced by top executives and breaches of rules by junior staff. Again taking a bank as an example, one risks a stiff fine for the company from the FCA (if they ever find out which is rare) but the other, even a very low impact breach by a junior employee in just one event, can lead to dismissal.

So before you alert your managers/colleagues to a possible disclosure or even think about making one, stop and think: then contact Affinity.

How To Make A Disclosure

If you are an existing member of the Union you must contact us first in confidence by emailing us at whistleblow@workaffinity.co.uk. Do not include any details of the proposed disclosure in that email, just your contact details. We will then contact you to advise you on the next steps.

Do not discuss the possible disclosure with anyone employed by or connected to your employer or indeed anyone else.