Whistleblowing: the first cases and practical issues


Anna Myers & Guy Dehn
October 2000

I. INTRODUCTION

II. BACKGROUND
This section explores some of the background which led to the founding of Public Concern at Work and the implementation of the Public Interest Disclosure Act 1998.

III. CASES: HOW THE LAW APPLIES IN PRACTICE
A brief analysis and summary of three full decisions brought under PIDA are provided in this section.

IV. INTERIM RELIEF (s. 9 PIDA)
This section sets out the provision for making an interim relief application under PIDA and briefly how it has been applied in two recent cases.

V. PRACTICAL ISSUES
This section is divided into four parts. The first section deals with legal points that arise with respect to whistleblowing and PIDA; the second and third sections look at the need for and the effect of implementing whistleblowing policies; and the last section deals with practical steps in achieving effective implementation of a whistleblowing policy.

Also included is an overview of the statutory framework and practical tips for small firms.

I. INTRODUCTION

Although the Public Interest Disclosure Act 1998 (“PIDA”) has been in force nearly a year - since July 1999 - it is only recently that the first full decisions of claims taken under PIDA have been decided. The importance of these decisions is not just that practitioners can analyse how PIDA is interpreted by the Employment Tribunals but also that employees and employers can see for themselves the protection that is afforded to responsible whistleblowers who are unfairly treated for raising concerns. No longer can it be said that whistleblowers should be protected under the law - the fact is they are.

Public Concern at Work, the independent whistleblowing charity, is aware of three decisions which have all found unanimously in favour of the applicant. In two of the cases the applicants claimed interim relief within seven days of their dismissal, one of which was successful. Organisations need to be aware how the legislation affects them. Specifically, organisations should be thinking about implementing safe and effective whistleblowing policies.

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II. BACKGROUND

A series of disasters, crimes and scandals in the late 1980s and early 1990s resulted in a number of public inquiries. These inquiries found that often people within the organisations knew of the potential dangers or malpractice and for a variety of reasons either were unwilling to raise the alarm or if they did raise it, did so with the wrong person or in the wrong way.

Some examples are the collapse of Bank of Credit and Commerce International (BCCI), the drowning of four children at Lyme Bay and the Clapham Rail crash. The Bingham Inquiry into BCCI found that the fraud, estimated at nearly £2 billion, was allowed to continue because of an “autocratic environment” in which no one dared to speak up. Before the canoe disaster at Lyme Bay an instructor had been so concerned about the safety standards at the activity centre that she had written to the managing director. In her letter she stated that if the safety standards were not improved “… you might find yourself trying to explain why someone’s son or daughter will not be coming home.” Shortly after four schoolchildren drowned. Because he had ignored such a graphic warning, the managing director was jailed for two years for manslaughter. The Hidden Inquiry into the Clapham rail crash found that a supervisor had noticed some loose wiring during an inspection but had not told anyone about it because he did not want to “rock the boat.”

What became clear from these inquiries is that there was a communication breakdown where either workers did not feel confident to raise their concerns, or if they did, the message was not heard. Public Concern at Work was founded in 1993. PCaW provides confidential legal help to employees who seek advice on whether and how to raise their concerns, and provides training and consulting services to employers on good governance and implementing effective whistleblowing policies. Drawing on its practical experience at that time of advising over 1300 whistleblowers and on its work with employers, PCaW was closely involved in settling the scope and detail of PIDA. At the request of Richard Shepherd, MP and the Government, PCaW was also responsible for consulting on the proposals and for securing the support of key interests such as the CBI, IoD, TUC and professional bodies. The Public Interest Disclosure Act, introduced as a Private Member’s Bill, became law in 1998.

More recently, media coverage of a number of disasters and scandals reveal the continuing need to encourage workers who have genuine concerns to raise them appropriately. Examples are the inquiry into the rail crash at Paddington where it was revealed that an engineer had warned of signal and track dangers four years prior to the crash and the case of pathologist James Elwood where senior medical staff had failed to act on warnings about serious problems with the standard of his work two years before it was revealed that he misdiagnosed the illnesses of as many as 220 cancer patients . The message is clear, approached properly, whistleblowing is a tool employers can use to gather important and possibly crucial information about potential or ongoing problems before they seriously damage the organisation and those who depend on it.

Recent decisions under PIDA are demonstrating that Tribunals are rigorously applying the provisions of the Act and responsible whistleblowers are being protected.

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III. CASES: HOW THE LAW APPLIES IN PRACTICE

Full Case Summaries
The following three cases involve employees who raised concerns both within and outside their workplace. Two of the claims were brought by employees who had been employed for less than a year.

Bladon v. ALM Medical Services ET April 25, 2000 (2405845/99).

This case highlights the need for employers to implement effective whistleblowing policies not only as a channel for communicating concerns but as a factor in determining liability. The fact that no policy was available was a point the Tribunal considered in determining that it was reasonable for the applicant to make a wider disclosure under s. 43G. Further, a Tribunal is likely to afford a high level of protection under s. 43G to an employee who approaches an investigatory body, whether or not it is prescribed under PIDA.

The Facts
The applicant had over 20 years experience as a nurse and joined ALM, the respondent, on 14 June as a charge nurse at one of its homes. On 19 August, while acting up as matron, the applicant raised concerns about management and standards at the home. As requested he faxed his concerns on 21 August to the MD’s PA, who said he would deal with them on his return from holiday. The concerns included poor drug records and a wound to a resident and, stressing his professional obligations as a nurse, the applicant asked for action. On 31 August, while the PA still away, the applicant felt he had to blow the whistle to the Social Services Inspectorate (SSI) because of the deteriorating affairs, citing concerns about injuries, drug records, staffing levels and neglect of residents. The next day the SSI carried out an investigation. On 8 September SSI wrote saying that four of the applicant’s six concerns were substantiated in whole or part and had to be addressed. On 9 September the applicant was told to attend a disciplinary about his lack of care, poor staff relations and his complaint to the SSI. The applicant was given a written warning and his appeal was not allowed to proceed. On 15 September the respondent wrote to SSI saying it had investigated the applicant’s concerns and refuted those that were not the applicant’s fault. On 16 September the applicant was summarily dismissed because his discharge of his professional duties fell below the standards expected of him. The applicant claimed for the detriment of the warning and for his dismissal under PIDA.

Result
Referring to PCaW’s annotations to the Act, the Tribunal held that the applicant’s concerns came within PIDA misconduct, that he had raised them internally and he was acting in good faith as his belief was shown to be correct and therefore was honest. It rejected the respondent’s arguments that the concerns should have been raised with the MD. The Tribunal expressed surprise that the SSI was not a prescribed person under s 43F. The Tribunal were impressed by the applicant’s evidence and his reluctance to use the emotive word ‘abuse’

The Tribunal found that the applicant’s whistleblowing to SSI was protected under s 43G as a wider disclosure. The applicant had raised the matter internally and the fact his concerns had been wholly or partly substantiated allowed it to conclude the applicant had reasonably believed they were substantially true. The disclosure was reasonable because [a] the SSI was an investigatory body, [b] the concerns were serious, and were demonstrated as such by SSI’s immediate investigation, [c] it was not unreasonable for the applicant not to await PA’s return and [d] the respondent had no whistleblowing policy.

The applicant had done agency work since the dismissal and was awarded some £5,500 for net losses already incurred and £7,500 for future losses. In making this award the Tribunal accepted that the applicant had not been able to get a comparable job as he was seen as a whistleblower and/or as litigious. The applicant had previously a 'clean’ working record.

As to the detriment (ie the written warning and denial of right to appeal) the applicant was awarded £10,000. The Tribunal said this sum took account of the applicant’s injured feelings and a substantial element of aggravated damages. The respondent had acted in a 'demeaning, insensitive, unprofessional, unreasonable and arrogant way’ which had left the applicant feeling 'belittled, professionally slurred, isolated and unable to respond in an effective way.’ The respondent had not investigated the applicant’s concerns or addressed them when asked to by SSI and, in blaming the applicant, had 'added insult to injury’.

It should be noted that the applicant had brought an application for interim relief within 7 days of his dismissal. This had been rejected by a Chairman without hearing evidence on the basis that the respondent’s defence was not implausible.

Azmi v. ORBIS Charitable Trust ET May 4, 2000 (2200624/99).

In order for an applicant to show that she was dismissed for making a protected external disclosure, she must show that the employer was aware that she raised her concerns. Even if it is not and the concerns had been raised internally, PIDA protection can still apply.

The Facts
A who had considerable experience in the sector was appointed as Resources Director for a UK charity which worked to tackle and alleviate blindness worldwide. There were 9 employees and the respondent had originally been the UK fund raising office for a US Trust. Six months before the applicant started, the UK Charity Commission had formally raised concerns about its financial operation and the degree of control exercised from the USA.

Shortly after her arrival on 24 May, the applicant contacted P (her predecessor) as she could not locate any records about a former employee who was suing the respondent. They met and P briefed the applicant on the concerns about governance at the charity. In June P faxed to the applicant and to the respondent’s auditors the draft of a letter to the Charity Commission detailing her concerns. The applicant later met the auditors to discuss these issues and was advised how she should try to resolve the problems internally. Following that advice, the applicant got the MD to agree that they should meet the respondent’s lawyer to ensure things were in order. On 6 August, the lawyer advised them that the UK charity should not be under the control of the US Trust and should not simply hand its funds over to it. Prior to that meeting, on 2 August P had sent her concerns to the Charity Commission and the applicant had sought confidential advice from Public Concern at Work as to her options. On 18 August, unbeknownst to her employer, the applicant rang the Charity Commission in confidence. On 19 August at the respondent’s AGM, the applicant was appointed company secretary. She then went to the US to meet with the Trust.

At a heated breakfast meeting with her MD in the USA on 23 August, the applicant raised her concerns about the governance of the respondent. Later that day when she reported her exasperation and concerns to the HR director of the US Trust, she was advised to put in a grievance against her MD. She did this on 24 August, citing his management style and failure to address the governance issues. While she attached to that grievance a copy of P’s draft letter, the applicant stressed that she had not been responsible for it. Separately, that same day her MD advised the President of the US Trust that the applicant should not be confirmed in her post because she demonstrated a lack of judgement and the wrong attitude.

Managers at the US Trust decided to extend the applicant’s probation period while her grievance was being investigated. However, when she returned to the UK in September she found that she was isolated. On 8 October the MD returned from the US and on 13 October the grievance investigations were completed. On 15 October, the Charity Commission served an order that the respondent disclose documents to it. That evening the applicant was told that her position would not be confirmed due to her poor performance. Subsequently the Charity Commission required changes to the rules and practices of the respondent and that a large sum of money was repaid by the US trust.

Result
The Tribunal decided that although disclosures such as to the auditors, Public Concern at Work and the Charity Commission all came within the Public Interest Disclosure Act they were not relevant. This was because as her employers did not know about them, they could not have been the cause of the dismissal. However, having heard all the evidence (and having rejected some of that against the applicant as not credible) the tribunal held that the applicant had been dismissed because she had repeatedly blown the whistle internally. It concluded that she had pressed the MD to address the concerns about the lawfulness of the respondent’s actions but that the MD “did not appreciate having such matters brought to his attention and used the excuse of performance to remove (her)”.

Compensation award to be made.

Fernandes v. Netcom Consultants (UK) ET May 18, 2000 (2200060/2000).

Where after making a protected disclosure, the worker is dismissed for his own misconduct the Tribunal will seek credible evidence that the alleged misconduct was a live and genuine issue prior to the disclosure. In the absence of reliable evidence, the PIDA claim will succeed.

The Facts
The applicant was employed for 4 years by a UK telecommunications company operating internationally. The company is a wholly owned subsidiary of a United States corporation which is ultimately owned by a Luxembourg company. At the time of his dismissal, the applicant was the Chief Financial Officer responsible for the accounts of Netcom (the respondent) and two sister companies based in the UK.

Within six months of taking up the post of managing director, the MD began to submit his expense claims without any receipts. The applicant was responsible for scrutinising the expenses - whether incurred through the company credit card or through cash advances - and when he asked the MD for the receipts, the MD assured the applicant that he would bring them in but never did. In January 1997, when the MD submitted his expense accounts still without supporting receipts, the applicant faxed a letter to raise his concerns with his contact at the US parent company. The contact telephoned the applicant and told him “You’re lucky I picked up your fax”, and advised him no further action would be taken, that his fax would be destroyed and that he should do the same and 'look after your butt’.

The applicant continued to request receipts from the managing director who reassured him that he had all the receipts in a large box, but still none were forthcoming. By early spring 1999, the pattern and acceleration of the expenditure was such that the applicant thought something should be done. The applicant was suspicious about the legitimacy of some of the expenses which included payments to clothing shops and to a solicitor. Later, he was told by the managing director’s wife that she and her husband had recently moved house which could have explained the solicitor’s payment. The Tribunal noted that audits in 1996, 1997, 1998 and an internal audit in 1999 failed to pick up any problems. Over a five-month period, the applicant prepared a document which outlined his concerns about the expenses as well as concerns about cashflow problems which had resulted in non-payment of corporation tax and late payments to staff pension funds. In November 1999, the applicant sent a letter and supporting documents to five senior management officials and Board members in the US and Luxembourg. He also faxed this letter to the UK team, including the managing director and on the same day he was told to remain at home pending investigation by the American company.

Within a week of disclosing his concerns, the applicant was twice interrogated by a US security man and once by the Chief Executive of the American company with the security man present. Further he was asked during two telephone conversations to resign and the second time threatened with criminal prosecution and told he would have to repay the £316,000 of expenses. The applicant refused to resign. Less than two weeks after disclosing his concerns, the applicant was summarily dismissed for gross misconduct. The stated reasons for dismissal were related to the applicant’s failing to pay the corporation tax and making late pension payments, and in particular for allowing the misappropriation of £316,000 in unauthorised expenses by the MD. The MD however retained his position.

Result: The applicant was successful at an interim relief hearing, following which the MD left Netcom. At the full hearing the Tribunal found that the reasons given for the applicant’s dismissal constituted a smokescreen and the real reason for his dismissal was disclosing his concerns about financial malpractice to his employers under s. 43C. The respondents argued that they had not dismissed him for raising his concerns but rather had done so because of the applicant’s own failings and his involvement in the malpractice.

The Tribunal was not satisfied with the truthfulness of the evidence adduced by the respondent and in particular with the assertion by the witnesses that the reason for dismissal was the applicant’s shortcomings in his job. The Tribunal found that the problems with the corporation tax and pension fund payments were well known by the MD and other managers and that discussions had occurred about resolving the difficulties. The expenses system was such that the applicant could only confirm the validity of expense claims after the money had been paid. Further, the Tribunal found that the task of authorising expenses was the function of each individual employee’s line manager. The applicant was found to neither approve nor benefit in any way from the managing director’s activities and generally speaking, the results of the full investigation by the respondents found that the information provided by the applicant was accurate. The Tribunal was further fortified in its view in light of the differential and preferential treatment afforded to the managing director.

The compensation hearing was held on 12 June 2000 and judgement has been reserved.

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IV. INTERIM RELIEF (s. 9 PIDA)

Under PIDA, employees who are dismissed can bring a claim for interim relief within seven days of dismissal. Even though this is not widely known, it is notable that in two of the three cases applications for interim relief were brought. The Tribunal will determine whether an employee should be re-employed in their job or alternatively receive their salary until the time of the full hearing. Obviously this is an important issue for both employees with claims and for employers facing claims.

In order to be granted interim relief, an applicant must establish that they are likely to succeed at the full hearing. The meaning of “likely” has and will likely continue to attract judicial debate. In the context of union activities, the Employment Appeals Tribunal found that a Tribunal had not erred in interpreting “likely” as meaning ‘more than a 51% chance’ of success but stated that it preferred the approach indicated in the colloquial phrase “a pretty good chance” of success.

In cases involving a s. 43C disclosure (to an employer) or s. 43E (disclosure to a Minister of the Crown) an applicant need only show that he had a reasonable suspicion of malpractice and that he raised his concerns in good faith. Under s. 43F (disclosures to a prescribed person) the threshold is only slightly higher in that he must reasonably believe the concern is substantially true. Generally, unless there are live pre-existing disciplinary issues, interim relief in these cases is readily attracted as demonstrated in Fernandes . Where the case involves a s. 43G disclosure, as in the case of Bladon , an applicant must demonstrate that it was reasonable in all the circumstances to raise concerns to an outside body. In those cases, it will be more difficult for a Tribunal to be able to find at the interim relief stage that an applicant is likely to be successful without hearing evidence.

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V. PRACTICAL ISSUES

Whistleblowing policies: legal points
The cases emphasise that to comply with PIDA, employers and their advisors shall consider:

a) the need to introduce a whistleblowing policy (see next section);

b) the implications of PIDA on confidentiality clauses in severance agreements and the use of such provisions in employment and related contracts;

c) that employers should make it clear that it is both safe and acceptable for workers to raise a concern they may have about misconduct or malpractice in the organisation and indicate the proper way in which concerns may be raised outside the organisation if necessary;

d) where a worker raises a concern about a specified malpractice, every effort should be made to ensure that the employer responds (and can show it has responded) to the message, rather than shoots the messenger;

e) where a protected disclosure has been made, employers should take all reasonable steps to try and ensure that no colleague, manager or other person under its control victimises the whistleblower;

f) that anything which might be construed as an attempt to suppress evidence of malpractice is now particularly inadvisable since a reasonable suspicion of a 'cover-up’ would itself provide a basis for a protected disclosure; that a disclosure to the media is more likely to be protected; and there is much reduced scope for containing any damage by a private settlement with a confidentiality clause;

g) that it is in their own interests to introduce effective whistleblowing procedures. This will not only help both parties separate the message from the messenger but will also reduce the likelihood that a public disclosure will be protected under PIDA.

Whistleblowing policies: the need
The early cases under PIDA underline the importance of implementing effective whistleblowing policies. In Bladon the Tribunal found that it was reasonable for the applicant to make a wider disclosure because, amongst other factors, there was no whistleblowing policy available to him. If the applicant in Fernandes had been able to raise his concerns appropriately to a designated officer under a whistleblowing policy the fraud which he suspected might have been detected and stopped much earlier. An appropriate whistleblowing policy would have reassured the applicant in Azmi that she would be protected for raising her concerns in good faith and would have indicated to her how to do so most effectively.

Whistleblowing policies: the effect
The purpose of a whistleblowing policy is primarily to deter and detect wrongdoing. It is not meant to replace any other procedure already in place; it is a separate and additional channel of communication. As confirmed by the new ACAS Code of Practice on Disciplinary and Grievance Procedures, a whistleblowing policy is separate from a grievance procedure. A policy signals to staff the appropriate way to raise their concerns. By implementing a policy and actively promoting it, senior management can demonstrate their commitment to hearing about concerns early and staff will be reassured that they will be protected if they raise concerns in good faith. Further, by clearly indicating that there are safe external routes to raise concerns. ie. to a prescribed regulator, staff will be even more assured that raising the matter internally is appropriate. Finally, it is important to note that none of the respondents in the three cases summarised above had implemented a whistleblowing policy. An effective whistleblowing policy will reduce the risk that claims will be brought under PIDA and that any wider public disclosures will be protected.

The Public Interest Disclosure Act 1998 protects workers who raise concerns in a responsible way and in so doing, encourages employers to respond appropriately and to separate the message from the messenger. Implementing an effective whistleblowing policy is essential in promoting openness and accountability in the workplace. In the private and public sectors, senior managers are recognising whistleblowing policies as a crucial risk management tool. A whistleblowing policy will help everyone separate the message from the messenger and helps clarify who is responsible for what to whom.

Whistleblowing policies: practical steps
As the Committee on Standards in Public Life has stated it is important to implement a whistleblowing policy, and once implemented the policy must be promoted to ensure “so that staff are left in no doubt about the avenues open to them.”

Public Concern at Work has produced a compliance toolkit (“Policy Pack”). The Pack has been supplied to every NHS employer in England and Wales and to over 250 public authorities. Regulators who use the Pack include the Audit Commission, the Financial Services Authority, the Inland Revenue and the Department of Trade and Industry. In the private sector, clients include leading companies such as BAe, BBC, British Gas, Camelot, Clifford Chance, HSBC, Nuffield Hospitals, PriceWaterhouseCoopers, Rio Tinto, Rolls Royce, Saur UK, Shell, Standard Life, Unigate and Whitbread.

The Pack (£360 including VAT) is designed to save employers days of work and costly legal advice. It explains why whistleblowing is important and how it works; contains practical tools and presentations to brief managers and staff; takes the user step-by-step through introducing and monitoring a policy; includes a draft policy, promotional and training material; contains clear and authoritative legal material; and shows how best use can be made of PCaW’s free helpline.

For more information on the Policy Pack, PIDA, whistleblowing policies or any services offered by Public Concern at Work please contact PCaW, Suite 306, 16 Baldwins Gardens, London EC1N 7RJ. Tel. 020 7404 6609; e-mail: whistle@pcaw.co.uk

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STATUTORY FRAMEWORK

PIDA has been praised by Lord Nolan for “so skilfully achieving the essential but delicate balance in this measure between the public interest and the interest of employers”. PIDA provides almost every individual in the workplace with full protection from victimisation where they raise genuine concerns about malpractice in accordance with the Act’s provisions.

Who does it apply to?
PIDA applies to every employee in the United Kingdom whether they are in private, public or the voluntary sector. In addition to employees PIDA applies to workers, contractors, trainees, agency staff, homeworkers and every professional in the NHS. It does not presently cover the genuinely self-employed (other than in the NHS), volunteers, the intelligence services, the armed services, or police officers.

When can a claim be brought?
Claims may be brought for detriment or unfair dismissal. Dismissal in breach of PIDA is automatically unfair and the usual qualifying period of one year’s employment does not apply.

What is a qualifying disclosure? (s. 43B)
A qualifying disclosure is set out in s. 43B. This means the information reveals genuine concerns about crimes, civil offences (including negligence, breach of contract, breach of administrative law), miscarriage of justice, dangers to health and safety or the environment and the cover up of any of these.

How is an employee protected?
PIDA sets out what a worker must demonstrate in order to be protected. The fullest - and most readily available - protection under PIDA (s.43C) is where a worker, who is concerned about malpractice, raises the matter within the organisation or with the person responsible for the malpractice. This section emphasises the vital role of those who are in law accountable for the conduct or practice in question. It does this by helping ensure that they are made aware of the concern, so they can investigate it.

Internal disclosures (s. 43C):
A disclosure to the employer (which may include a manager or director) will be protected if the whistleblower has an honest and reasonable suspicion that the malpractice has occurred, is occurring or is likely to occur. Where a third party is responsible for the malpractice, this same test applies to disclosures made to him. A disclosure is made in good faith if it is made honestly, even though made negligently or without due care.

Disclosures to legal advisors (s. 43D):
This means that a worker can seek legal advice and be protected for doing so. This is the only disclosure under PIDA which does not require the employee to have made the disclosure in good faith.

Disclosures to Minister of the Crown (s. 43E):
This section provides that workers in Government appointed bodies are protected if they report their concerns in good faith to the sponsoring Department rather than to their employer. The section refers to disclosure to a Minister, as legally this is what a disclosure to a Department is. Examples of the bodies to which this section applies are where the employer is an individual appointed under statute by a Minister (e.g. the utility regulators) or where one or more members are appointed by a Minister (e.g. NHS Trusts, tribunals and non-departmental public bodies).

Disclosures to prescribed regulators (s. 43F):
PIDA makes specific provision for disclosures to prescribed persons, meaning prescribed under the Act. These include regulators such as the Health and Safety Executive, the Inland Revenue and the Financial Services Authority. Such disclosures are protected where the whistleblower meets the tests for internal disclosures and, additionally, honestly and reasonably believes that the information and any allegation in it are substantially true.

Wider disclosures (s. 43G and s. 43H):
Wider disclosures (e.g. to the police, the media, MPs, and non-prescribed regulators) are protected if, in addition to the tests for regulatory disclosures, they are reasonable in all the circumstances and they are not made for personal gain.

The whistleblower must, however, meet a precondition to win protection for a wider disclosure. This is either that (a) he reasonably believed he would be victimised if he had raised the matter internally or with a prescribed regulator; (b) there was no prescribed regulator, and he reasonably believed the evidence was likely to be concealed or destroyed; (c) the concern had already been raised with the employer or a prescribed regulator; or (d) the concern is of an exceptionally serious nature.

If these provisions are met and the tribunal is satisfied that that disclosure was reasonable, the whistleblower will be protected. In deciding the reasonableness of the disclosure, the tribunal will consider all the circumstances, including the identity of the person to whom it was made, the seriousness of the concern, whether the risk or danger remains, and whether the disclosure breached a duty of confidence which the employer owed a third party. Where the concern had been raised with the employer or a prescribed regulator, the tribunal will also consider the reasonableness of their response. Finally, if the concern had been raised with the employer, the tribunal will consider whether any whistleblowing procedure in the organisation was or should have been used.

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PRACTICAL TIPS FOR SMALL FIRMS

Businesses with a small number of staff may think it is not necessary to set up a full whistleblowing policy. Recognising this, Public Concern at Work has produced the following practical points to help these employers:

Understanding the issue

  • Asking your employees to keep their eyes open is a key way to promote, display and ensure good practice. If you successfully involve your employees, it should give a clear message to those who are tempted that they will not get away with it and everyone else will soon see that you are serious about tackling any form of wrongdoing.
  • Listen to the employees and to their sense of right and wrong. Explain what fraud on the organisation is, its effect on their jobs and the service they provide. Be as clear about the effects of other forms of serious wrongdoing. Get any staff bodies or union to back and promote this approach.

Ensure employees see the policy in action

  • Employees need to know what practices are unacceptable (e.g. as to hospitality, gifts). They should be encouraged to ask management if something is appropriate before - not after - the event.
  • When you find serious wrongdoing (whether by employees, contractors or the public), deal with it seriously. Remember you cannot expect your employees to practise higher standards than those you apply.

Be open to concerns

  • Remember - it is never easy to report a concern, particularly one which may turn out to be fraud or corruption.
  • Try to ensure that management is open to such concerns before they become part of a grievance and do not let management’s lack of action itself become a grievance.
  • Make it clear that you will support concerned employees and protect them from reprisals. Do everything you can to respect their confidentiality, if requested.
  • Aside from line management, make sure employees have another route to raise a concern. This should be to a senior officer such as the Chief Executive or a non-executive director. Tell employees how they can contact that person in confidence.
  • Remind employees of relevant external routes if they do not have confidence to raise the concern internally, such as an external auditor. Reassure them that they can approach Public Concern at Work for confidential advice.

Dealing with concerns

  • Remember there are two sides to every story
  • Respect and heed legitimate employee concerns about their own safety or career
  • Emphasise to both management and to staff that victimising employees or deterring them from raising a concern about wrongdoing is a disciplinary offence
  • Make it clear that abusing this process by raising unfounded allegations maliciously is a disciplinary matter
  • Offer to report back to the concerned employee about the outcome of the investigation and, where possible, on any action that is proposed.

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