How to handle a whistleblower report A guide for employers Best practice guidance for the UK regime
Introduction This whitepaper provides best practice guidance for handling whistleblowing reports within an organisation. It assumes that a whistleblowing policy and procedure is already in place, and has been fully communicated to employees. 1. Assess whether the whistleblowing report is valid The employer s nominated first point of contact for all whistleblowing reports should be notified, and provided with a copy of the report. That person can then determine whether the report is a legitimate whistleblowing complaint, or a personal grievance. The basis for a whistleblowing complaint should be outlined within the employer s whistleblowing policy, but it must relate to a complaint made in the public interest. This would include things like as an illegal or corrupt practice, or a Health and Safety concern. If the report is a personal grievance, it should usually be passed to the appropriate person to investigate under the ordinary grievance process. 2. Assign an investigator The nominated first point of contact should identify the most appropriate person to investigate the report further. Clearly, if the nominated investigator has been implicated in the disclosure, it should ideally be passed to someone else for further action. Your organisation may have identified investigators for certain types of complaint in advance as part of your whistleblowing policy particularly for specialist areas like Health and Safety complaints. There is no legal obligation to nominate people in advance, nor to use specialists, but this may help a swift and authoritative investigation into the disclosure which may in turn prevent it going any further. Once identified, the investigator should be provided with all the details provided by the whistleblower. 2
3. Begin the investigation The investigator should promptly begin an investigation into the disclosure. Anonymous reports If the report has been made anonymously, the investigator may be unable to gain further detail or evidence from the whistleblower. Any later review of the matter will understand that without access to supporting detail, the employer will be limited in the enquiries it can make. However, the organisation should still conduct a thorough investigation based upon the information available. Confidential reports If the report has been made confidentially, the investigator should try to arrange a meeting with the whistleblower as soon as is reasonably practicable to explore the disclosure. If maintaining confidentiality will prejudice the employer s ability to investigate and/or remedy the position, this should be explained. Breaching the confidence of a whistleblower could form the basis of a decent constructive dismissal claim. 4. Meet with the whistleblower (confidential reports only) The investigator should consider whether they should allow an individual to be accompanied in any investigation meeting by a work colleague, and/or a member of HR. It may not be strictly necessary, as this may not be a formal procedure, but it may help put the whistleblower at ease. It may also help protect the investigator and employer from potential complaints of victimisation regarding information shared in the meeting. The employer s position on these points should be documented in its whistleblowing policy. At the meeting, the investigator should ask the whistleblower to detail the disclosure as fully as possible and why they have made it. 3
During the meeting, the investigator should explain the likely course of action in terms of investigating the situation. The Investigator should keep a note of the meeting so that there can be no doubt at a later date as to what was said. This will show that the disclosure was dealt with reasonably. Ask HR to keep these notes confidentially on the individual s file. 5. Tell those identified, and warn against retaliatory action In cases where an alleged wrong-doer is identified, whether or not with any objective merit, the employer should notify that person in writing that retaliatory action against the whistleblower may be unlawful. The legal exposure from whistleblowing is, after all, not in your receipt of the disclosure, but in how the individual making it is treated in consequence. 6. Address the issues raised Take the appropriate actions to address the issues raised by the whistleblower (if indeed any action is required). In cases where the whistleblower is known, a further meeting may be held to discuss progress in remedying the situation, and to establish that both parties are satisfied that the concerns have been dealt with and addressed. However, it is not essential (under whistleblowing legislation) that the employer s remedial steps are agreed with the employee. 4
Are your employees able to report their concerns easily? As an employer, it is good practice to create an open, transparent and safe working environment where employees feel able to speak up. By having clear policies and procedures for dealing with whistleblowing, an organisation demonstrates that it welcomes information being brought to the attention of management. The introduction of a whistleblowing hotline or web reporting service can encourage employees to report their concerns in confidence. This can be internally managed, or administered by an independent third-party provider, like Expolink. Further guidance The Department for Business Innovation & Skills has prepared detailed guidance for employers who may need to handle whistleblowing reports. You can access this resource at: www.gov.uk/government/publications/whistleblowing-guidance-and-code-of-practice-for-employers Contains public sector information licensed under the Open Government Licence v3.0. 5
About the author This guide has been written exclusively for Expolink by Laura McLellan. Laura is a Senior Associate at Squire Patton Boggs - one of the world s strongest integrated legal practices employing more than 1,500 lawyers in 44 offices across 21 countries. Widely acknowledged for its international reach and diverse sector expertise, Squire Patton Boggs client base spans every type of business, both private and public, worldwide. They advise a diverse mix of clients, from Fortune 100 and FTSE 100 corporations to emerging companies and from individuals to local and national governments. www.squirepattonboggs.com About Expolink Expolink is Europe s longest-established provider of outsourced whistleblowing hotline services. Founded in 1995, Expolink has grown quickly to become a globally-recognised leader in our sector. Today we support more than 20% of FTSE 100 companies, many FTSE 250 and Fortune 500 companies, local authorities, government departments, police forces and multi-national corporates. If you would like to discuss introducing an outsourced whistleblowing hotline service into your organisation, please get in touch for a friendly chat. For more information call (+44) 01249 661604 or email val.lodge@expolink.co.uk expolink.co.uk/whistleblowing 6