Understanding Whistleblowing in the Workplace and Lessons Learned

Siobhan Bishop: Hello and welcome to our podcast where we're discussing whistleblowing in the workplace.  I'm Siobhan Bishop, a Principal Associate in the Employment, Labour & Equalities team and I'm joined by Simon Stephen, a Director in our team who's here to chat about the latest developments in the world of whistleblowing and the practical steps for employers.

Simon, let's have a look at the recent and very important case of Jhuti to start with and that was about the reason or the principal reason for dismissal where an employee had in fact made a protected disclosure in the past and listeners may remember that in that case the Supreme Court considered whether that dismissal was automatically unfair where the employee had made that protected disclosure to his line manager but the line manager then misled the dismissing officer and made it look like the individual was severely under-performing. Therefore the dismissing officer genuinely dismissed the employee for poor performance, as it was seen at the time, and they were unaware of their protected disclosure.  But what else are the key factors from this case?

Simon Stephen: Yes, so if the reason or if there is more than one reason, the principal reason for a dismissal is that the employee has made a protected disclosure, that dismissal will be automatically unfair.  So this case was looking at the decision maker's genuine belief and whether that belief that the Claimant's performance had been inadequate was the reason for dismissal. Or, in fact, the reason for the dismissal was, or another reason was that she had made a protected disclosure. 

The Court of Appeal in this case had previously decided that it is only the mental process of the person or the persons who were authorised to and did take the decision to dismiss.  The Supreme Court however has now unanimously confirmed that the employer will be liable where an individual in the hierarchy of responsibility above the employee has in fact manipulated the process, so here the performance process, and hidden the genuine reason from the decision maker.  So what that means is that actually the reason for the performance management process was because the individual had raised a protected disclosure but the decision maker did not know that and, on the face of it, it did look like genuine performance.  As the real reason manipulated in effect the ultimate decision, the company was liable and she was dismissed automatically unfairly for making a protected disclosure. 

So in general the Courts need only to look at the reason given by the decision maker.  They'll look at it on the face of it. However, if the real reason is hidden from a decision maker and an invented reason is presented, whether or not that decision maker is aware of any of the underlying manipulation, the Court will and must penetrate through that invention to find the real reason to get to the truth.

Siobhan: So that was a real key case from the tail end of 2019.  In fact one of the key cases of the whole year and it's worth saying that that case will make it more difficult for employers and they will need to be more careful when dealing with dismissals generally and not just in a whistleblowing scenario.  So Simon how will that work?

Simon: Yes, that's right.  The case is in fact of wider importance as it applies not just to dismissals for making a protected disclosure because the wording under the Employment Rights Act relates to unfair dismissal as well as whistleblowing. However, the facts of this case are in fact pretty extreme and it's unlikely we'll see many cases of this ilk but it is clear that the improper actions or motive of a line manager manipulating processes and procedures will be attributable to the company. So it's absolutely key that a decision maker, so a manager making a decision, and HR supporting them need to ensure that they have all the relevant information before making a decision and that they are satisfied that what they are seeing is actually fully genuine and isn't tainted by any improper motive. 

It's also important to identify any risk of a potential connection between allegations made by the employee, either they're whistleblowing or of another type, and any subsequent actions taken against them and it's important to make sure that any action that is taken is not taken in retribution, whether that's victimisation under the discrimination laws or detriment under the whistleblowing protection.

Siobhan: Simon, you've got a lot of experience from in-house about whistleblowing policies and procedures and culture and dealing with the situation so what would you suggest are the key things to avoid a situation like this arising in the first place and how an employer develops a good culture for whistleblowing?

Simon: Yes, well I think obviously the key thing is to have policies and procedures in place but these, as everybody will know, don't do it by themselves.  You can have the best process and procedure on paper but unless it's actually backed up and implemented properly it won't really be effective.  So employers should make sure that they actively review policies and especially the training in those policies for managers and for those who are likely to be dealing with complaints raised to them and for those who are in a position to spot issues being raised.

It's very rare that somebody comes in to the workplace first thing in the morning with an intention to blow the whistle. Often these things come through organically, through small complaints here and there and noticing things, raising comments and one to ones and it builds and gathers pace.  So it's very important that managers are alive to spotting these issues and are then trained in how to deal with them and particularly what the correct process is.  So grievance and disciplinary and other policies need to be strong and clear and signpost where people can go to raise concerns, whether informal or formally, and they also need to be very clear that retaliation for raising any concerns, whether or not that is whistleblowing, is not tolerated and will be seen most likely as a disciplinary offence. 

It's also important that those who are involved in employee relations processes, including investigations, hearings, managing performance or dealing with disciplinaries or any allegations are trained in how those work and are trained, specifically, on the risks and what their responsibilities are as a decision maker. Ultimately, it comes down to the business culture of enabling people to speak up and also to be listened to.  In an ideal world, staff are being encouraged to raise concerns and the company would use these to promote the high standards required and this involves encouraging constructive internal disclosures, signposting where and how to raise things because ultimately whistleblowing is supposed to be a good thing. 

It's a bit like the dashboard on your car when you're driving.  You want to know when those yellow and red lights come on when something is going wrong.

Siobhan:  So you have the warning light but what are the obstacles generally that organisations face when dealing with whistleblowing and also the bigger picture of the problems facing the organisation when trying to embed it in the culture?

Simon: Yes, of course it's very easy for me to sit here on the other side of the microphone, and put out all these kind of best practice main points but there of course many obstacles in the way.  One of the top ones I think is the stigma against whistle-blowers or people raising concerns.  I realised recently that it's embedded from an early age, even with young children, about don't tell tales and people being called snitches etc.  It's not really seen as the done thing to tell on others.  So that stigma is something that needs to be done and kind of reversed in a way and the key way of doing that is tone from the top.  We've seen many cases of regulators taking action against senior executives when they haven't been maybe doing what they should do under the whistleblowing legislation or whistleblowing regulatory requirements. 

That tone from the top, that speaking up, raising concerns is indeed something that is acceptable, it is something that is encouraged, it is right and it should form part of the overall risk management and corporate governance structure. 

Of course the resource managing is difficult. Depending on the size of the organisation you will have different levels of whistleblowing and concerns being raised but it is important to make sure that the appropriate and correct resource is allocated to deal with it, not least then you can have consistency in approach and having alignment across different functions.  That links back to people understanding what whistleblowing is and what whistleblowing isn't.  Whistleblowing is very simply put, the issue of somebody raising something they don't think is right and, as I've said, that's a good thing that we identify that. 

What whistleblowing isn't, it isn't an extra mechanism for people to raise grievances etc.  There are other mechanisms for those. But linked to that as well is the fact that, of course, not all whistle-blowers are genuine.  I think everyone in HR and legal practices dealing with employment cases will have had those experiences where somebody is told that they are being made redundant or being put through a disciplinary process and they may not have two years' service, so the response is that they think it's being done because of a whistle blow and that is of course a tactic, it's something that people may use but in my view it unfortunately detracts from the genuine whistle-blowers and adds to the stigma.

As I said, many whistleblowings are actual personal grievances or other matters that are best dealt with outside of a whistleblowing process and that is a challenge because people remember those rather than the genuine whistleblowers who have actually done something which adds value back to the company.  You always remember the difficult ones or the ones that tend to get a bit litigious.

Siobhan: But if you actually spot the helpful ones it can be a benefit all round.  So I know you've already touched on the importance of policies and training and those who are involved in these processes and particularly the importance of the investigation stage.  What else helps, what else can you recommend practically for embedding good practice?

Simon: Well I think we've gone through the main points but I think the key thing for me is that you have a clear framework of whistleblowing under which the whole process is including managerial training, the branding, the approach to risk management are all kind of set out though. I think it is important just picking up on that branding point to think how you actually talk about whistleblowing in the workplace.  Throughout this podcast I've been using the word 'whistleblowing' even though that's a word I really don't like because it is quite emotive it carries with it that stigma in people's initial thought processes.  Many companies now are looking at 'speak up' culture and 'listen up' cultures, using integrity hotlines, things like that. So it's important to think about how it is portrayed in the workplace and how then you encourage people to use it with that branding.

Siobhan: Yes I was reading recently about how language affects people's emotions so that reflects clearly what you're saying.  So it's really good to chat with you Simon and this podcast is a start of a process, so can you tell us about that?

Simon: Yes of course so whistleblowing is obviously very important for HR professionals and those involved in employment legal because of managing the individuals whose raise concerns, managing those policies and also kind of managing any grievances and potential litigation that comes out of it, but whistleblowing really is at the heart of corporate governance and risk management. So we are working closely with the employment team and our corporate governance team on whistleblowing as a key part of that risk management so watch this space for a number of future events including blogs, breakfast seminars and various other interesting items picking up on this topic because the reality is, this is something it will always be on the top agenda of regulators and will be a political hot potato to come as well.

Siobhan: That sounds really great.  Thank you Simon for that and thank you for joining us and if you do have any questions on this area, please do feel free to get in touch with Simon.