The news that the Barclays boss will be investigated after trying to identify the author of a letter that was classed as blowing the whistle has caused concern amongst those in the banking industry. This story comes on the back of the Financial Conduct Authority trying to encourage a culture which encourages individuals to blow the whistle. Banking is not the only sector which struggles with whistleblowers and how to treat these and all employers should take steps to improve their approach.
The first thing to note is that whistleblowers are often perceived as a negative occurrence, however, employers need to ensure a negative culture around blowing the whistle is not prevalent in their business. Encouraging employees to bring up concerns internally, rather than seeking external sources, will allow the errors or concerns to be addressed as soon as possible by the correct individuals.
Whistleblowing is the term commonly used for making a disclosure in the public interest. Workers make qualifying disclosures where they reasonably believe that one of the following is happening, has happened or is likely to happen in the future: a criminal offence; a breach of a legal obligation; a miscarriage of justice; danger to health and safety; damage to the environment and a deliberate attempt to conceal any of these. If the individual reasonably believes this is in the public interest, i.e. it doesn’t relate solely to the person making the complaint, then it is a qualifying disclosure. Where the requirements aren’t met, the worker hasn’t made a public interest disclosure however it’s important that their concerns are not ignored and are addressed through a different method, for example, through informal resolution or the normal grievance procedure.
Once the whistle has been blown, employers should not ignore the disclosure as this could lead to the employee making further complaints. Most companies have a whistleblowing policy that should be followed. This generally outlines the process for investigation, meeting with the person making the disclosure or any individuals named in the disclosure, feedback and how to address the issue going forwards. Policies will usually specify the person to whom the disclosure should be made to, generally a prescribed person, which should help encourage disclosures being made in the correct manner. Any clauses relating to anonymity of the whistleblower, for example, that this will be maintained throughout the process, should be adhered to unless the anonymity makes it impossible for the disclosure to be addressed by those responsible for implementing the process.
Whistleblowers who make a qualifying disclosure are protected by the law from being dismissed of victimised because they have blown the whistle. If the main reason for the dismissal is the disclosure, then the employee will be entitled to bring an automatic unfair dismissal claim without having any length of service.