As a result of the pandemic, employers have had to face a number of challenges they have never seen before. Although restrictions have eased in certain parts of the UK, some parts have been subjected to local lockdowns, firebreaks and tier systems.
This means that it is extremely important for businesses to enforce the appropriate health and safety procedures imposed by the government. If they do not, some workers may decide the appropriate action is to make a ‘protected disclosure’. It is expected that there will be an increase in whistleblowing claims because of the pandemic.
In this article, we explain what whistleblowing is, and how disclosures should be dealt with.
Ensure You’re Aware of the Current Rules and H&S Risks Concerning Covid-19
Covid-19 has imposed a number of strict restrictions on many businesses, some have been required to close for a lengthy period and the government have urged business to allow employees to work from home where possible.
England and Wales have different restrictions and rules in place which allows businesses to open up safely. You can read the latest rules for England here, and Wales here.
It is important for businesses to ensure that they comply with the regulations implemented, as failure to take reasonable measures to minimise exposure of Coronavirus COVID-19 is an offence which, on conviction, may lead to a fine.
If you are not following the necessary measures, workers may decide to raise a protected disclosure under the whistleblowing legislation. If they do this, it is important that you understand how to respond to a protected disclosure.
What is the Law on Whistleblowing?
Whistleblowing legislation protects those from being reprimanded, victimised or let go because they have spoken out about any suspected wrongdoing or dangers in relation to their employer’s activities. Whistleblowing protection will be afforded where the following apply:
- The person making the disclosure must be a worker - Whistleblowing legislation covers employees, apprentices, trainees and agency workers. The definition of a ‘worker’ is wider and covers both current and former workers.
- They must reasonably believe they are acting in the public interest - The test is not defined in law. The basis is that the disclosure is made in the interest of other people and must not be a personal grievance.
- The worker must have a reasonable belief that the information disclosed, shows one of the following has occurred, is occurring or is likely to occur:
- A criminal offence
- Breach of a legal obligation
- Miscarriage of justice
- Damage to the environment
- Danger to the health and safety of any individual
- The deliberate concealing of information about any of the above
How Should Employers Respond to Whistleblower Reports?
If you receive a protected disclosure, you must treat it seriously and deal with it in a prompt manner. When responding to a whistleblowing report you should:
- Investigate the matter - Hold a meeting with the worker who made the disclosure to further understand the malpractice or wrongdoing. It may be necessary to ask them for a written statement detailing the nature of the disclosure and the basis for it. Ensure the worker who made the disclosure understands that this will not affect their position at work and provide the necessary support required while the matter is investigated.
- Relevant witnesses - If there are any witnesses to the protected disclosure, you should hold a meeting with them to gather as much evidence as possible in relation to the malpractice or wrongdoing. You must ensure that confidentiality is maintained.
- Decision - Once the investigation has been concluded, you must write to the worker (who made the disclosure) of the outcome and the basis for the decision.
- If the allegation is not upheld - If the claim cannot be evidenced, ensure that the worker is not penalised for making the protected disclosure, unless it can be shown that the worker deliberately lied or created false information out of malice.
- If the allegation is upheld - You must take appropriate action, for example, reporting the matter to an appropriate external government department and take disciplinary action against those involved in the wrongdoing. In addition to this, you should rectify the issue, for example, when it relates to health and safety.
- If you discipline, dismiss or select the worker for redundancy because they made a protected disclosure - they will be able to submit a claim to an employment tribunal for unfair dismissal. A worker does not need to have had two years qualifying service to bring a claim for whistleblowing.
TIP: Keep records of any whistleblowing disclosures made and the details of the investigation. This will aid you in proving that the workers complaint was taken seriously, especially where a case is brought to the Employment Tribunal.
Why it is Important to Have a Whistleblowing Policy?
The purpose of a whistleblowing policy is to encourage workers to report suspected fraud, corruption or dangerous activity and provide managers with the process they should follow when they receive a protected disclosure.
Although the law does not require you to have a whistleblowing policy in place, it is highly recommended that you do. However, having a whistleblowing policy demonstrates a willingness to listen to workers and encourage them to raise any issues internally.
It is also advisable that you provide senior staff with necessary whistleblowing training to ensure that they understand how to deal with a protected disclosure.
Do You Need Help with Your Whistleblowing Procedure?
If you would like some guidance on your policy or a disclosure that has been raised, please get in touch with our team to discuss the specifics of your whistleblowing case.
