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According to Expolink’s last annual whistleblowing report, the number of new whistleblowing complaints per thousand employees jumped from 2.1 in 2016 to 3.3 in 2018 – a 57% increase.
In the latest episode of our employment law podcast, Employment Law Focus, we discuss whistleblowing and share some top tips on how organisations can handle these types of complaints appropriately.
1. Having effective procedures that allow for whistleblowing is fundamental to good corporate governance, culture and risk management. Such policies support the identification, correction and prevention of poor culture, and protect whistleblowers from dismissal and detrimental treatment as a result of speaking up. Review policies regularly to maintain their effectiveness.
2. It makes sense as a general rule to interview a whistleblower at the outset of an investigation, to gather as much detail as possible and help scope the investigation.
3. Employers should provide a mechanism for whistleblowing while an employee is still in the business, and help facilitate those disclosures. This can increase the chance of a successful internal investigation (see reporting to the regulator below).
Managing the investigation
4. A whistleblowing disclosure must be made in the public interest, but remember that the bar has been set fairly low. A disclosure can be in the public interest even if it concerns a whistleblower's own interests or those of a relatively small group of co-workers.
5. Remember also, there doesn't need to be any wrongdoing, and the whistleblower doesn't need to think anything has happened. The true question is whether the individual believed the wrongdoing was taking place or was likely to take place, and that their belief was reasonable.
6. It can take a lot of management time to deal with a crusading or campaigning whistleblower. In these cases, it can be helpful to explain that you will deal with their emails and disclosures together, at regular intervals, rather than responding to each message separately.
7. It is not always easy to decide whether to report a complaint to the regulator or conduct an internal investigation first. The benefits of proactive reporting can include getting their assistance with the investigation and helping to ensure a robust conclusion.
8. Consider who may be proximate to the allegations. Those involved in the misconduct may not always be named by the whistleblower or the misconduct may go beyond those named in the reports.
9. An important decision to make upfront is who should be involved in the investigation. Investigation teams should be limited on a need to know basis, but may combine multiple disciplines including in-house legal teams, HR, audit, risk and even external counsel. Anyone considered potentially proximate to the allegation should not be involved in managing the investigation.
10. Stay open-minded about other issues that may arise from the investigation, and act accordingly. We often see a “mushroom effect” where one concern is raised and then it mushrooms into a number of other connected concerns. Constantly re-assess the information in front of you.
11. Consider what pastoral care is needed at the outset of an investigation, and who for. This could be the whistleblower, the accused and anyone else proximate to the allegation. Those providing pastoral care should be separate from the investigation team to avoid a conflict of interest.
12. Keep a record of all the steps taken and key decisions made during the investigation, taking care to protect legal privilege and confidentiality. A clear audit trail can ensure that any subsequent challenge can be robustly defended.
It can also be useful to maintain an “in the know” list that records who is aware of what, who is involved in the investigation and why. This can assist with ensuring privilege is not lost, knowing who to instruct and who can make decisions, and preventing a leak – which could lead to the whistleblower saying they've been mistreated in a way that they weren't expecting.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as of May 2020. Specific advice should be sought for specific cases. For more information see our terms and conditions.
12 May 2020