Whistleblowing
Whistleblowing legislation allows workers to raise concerns about wrongdoing in the workplace without fear of retaliation.
UK law offers strong protections to individuals who make protected disclosures, and, as an employer, you must understand your legal obligations, have effective policies in place and respond appropriately to concerns raised.
What Obligations Do Employers Have?
You should:
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have a written whistleblowing policy that meets legal standards
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communicate the policy clearly to all staff
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ensure whistleblowers are protected from detriment or dismissal
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investigate disclosures promptly and fairly
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take appropriate action where wrongdoing is established
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protect confidentiality where possible
Effective handling of whistleblowing reduces legal risk and demonstrates commitment to ethical business conduct.
What Is Whistleblowing?
Whistleblowing occurs when an employee or worker makes a protected disclosure about wrongdoing in the workplace.
A protected disclosure is a disclosure of information that, in the reasonable belief of the worker, tends to show that one or more of the following has occurred, is occurring, or is likely to occur:
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A criminal offence
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Breach of any legal or regulatory obligation
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Miscarriage of justice
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Danger to health and safety
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Sexual harassment
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Damage to the environment; or
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Deliberate concealment of any of the above
To qualify for protection, the disclosure must be made in good faith and to the correct person or body.
Who is Protected by Whistleblowing Legislation?
Protection under whistleblowing law applies to a broad range of workers, including:
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employees
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agency workers
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contractors
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trainees and apprentices
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some volunteers
People raising concerns must have a reasonable belief that the information tends to show wrongdoing. Even if the information turns out to be incorrect, protection can still apply where the reasonable belief test is met.
How Should Protected Disclosures Be Made?
A protected disclosure can be made:
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internally, to the employer or a nominated officer
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externally, to a prescribed person or body (e.g., regulator)
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sometimes to other persons if the circumstances justify it
Employers should encourage internal reporting to allow timely investigation and response, while ensuring employees know how and where to report concerns.
External reporting is a valid route where internal mechanisms are unsuitable, have been exhausted, or the disclosure involves wrongdoing that should be notified to a regulator.
What Duties Do Employers Have?
Respond Promptly and Fairly
When notified of a concern:
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acknowledge receipt as soon as possible
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assess whether the concern could be a protected disclosure
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investigate impartially and without unreasonable delay
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keep the whistleblower informed of process and outcomes
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maintain confidentiality where feasible
Avoid Detrimental Treatment
It is unlawful to subject a whistleblower to detriment because they made a protected disclosure. Detrimental treatment can include:
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demotion
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exclusion from meetings or decisions
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bullying or harassment
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unfavourable changes to duties or hours
Dismissal of a whistleblower may also be automatically unfair if it is “because of” the disclosure.
How Should a Whistleblowing Concern Be Investigated?
The Process
When a concern is raised:
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Preliminary assessment: determine whether the matter falls within whistleblowing protection
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Plan the investigation: identify relevant documents, witnesses and risk areas
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Gather evidence: interview witnesses and review documentation
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Analysis: evaluate whether the concern is substantiated
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Outcome and action: decide on appropriate remedial steps and communicate with the whistleblower
Separate the investigative function from those implicated in the concern to ensure impartiality.
Confidentiality and Anonymity
You should protect a whistleblower’s identity where possible, consistent with the need to conduct a meaningful investigation. Confidentiality encourages reporting and reduces fear of retaliation.
Anonymous disclosures can still be investigated where practicable, but you should balance anonymity with the need for specific information to investigate properly.
What are the Legal Risks?
You will face legal risk if:
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there is no written whistleblowing policy
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reports are ignored or not investigated
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workers who raise concerns suffer detriment
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confidentiality is breached
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disciplinary action follows a protected disclosure
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retaliation occurs
Tribunals take a strict approach to whistleblowing protection, and awards for successful claims can include compensation for financial loss, injury to feelings and aggravated damages in some cases.
How We Can Help
Whistleblowing complaints are complex and sensitive. Our team can help you by:
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drafting compliant whistleblowing policies and procedures
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training HR and management on handling disclosures
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advising on investigations and risk mitigation
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defending claims for detriment or unfair dismissal
Making the cost of expert employment law advice predictable, affordable and essential to your business.
ENHANCE is our unique, industry-leading employment law service just for employers. Employment law is fast-paced and constantly changing. We have created ENHANCE to protect your business from the risks of employee disputes and litigation, and to help you successfully navigate your business through the minefield of employment law.
CONTACT US
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