We need to talk about the Whistle

06 février 2020

Whistleblowing continues to be in the news and is very much the focus of many a regulator. It is also being recognised - when done and managed properly - as a necessary part of good corporate governance, risk management and controls. Whilst it may be on the radar for some sectors more than others (for example, financial service firms will be familiar with the ever tightening FCA approach) it's difficult to think of any area or any type of business where whistleblowing isn't relevant. Not being made aware of lurking issues may even sit as a risk in your own risk framework.



Of course, not all people raising issues do so for the right reasons. That is beyond the scope of this blog, although another post on the psychology of whistleblowing goes into more detail.

We often focus on the legal side and what protection is available for whistleblowers: protection from being dismissed or being subjected to a detriment for having made a 'protected disclosure'. UK legislation kicks in after someone has made a protected disclosure and the battleground is then often around whether or not someone actually has that protection. This is of course a very important aspect of whistleblowing for both individuals and businesses.

The UK position does however, to use a cricketing term, tend to throw at the wrong set of stumps.

From a commercial perspective, ideally issues would be spotted, raised and sorted early on. This includes identifying vexatious or malicious motives and managing them whilst also investigating the underlying allegations. After reading a bedtime story to my youngest child a Thomas the Tank Engine analogy came to mind to set this out. Bear with me…

Compare these 4 scenarios:

  1. 'Toot toot' says Thomas as he blows his whistle. He needs diverting as his brakes are shot and there's a cow on the line ahead! Thomas is diverted by a signal operator. Thomas doesn't hit the cow.
  2. 'Toot toot' says Thomas as he blows his whistle. I'm fed up and tired and want a day off, so am going to grumble about Gordon and how much work he makes me do. The cow is irrelevant (for now) but Thomas annoys everyone.
  3. 'Toot toot' says Thomas as he blows his whistle. He needs diverting as his brakes are shot and there's a cow on the line ahead! Thomas is not diverted. The signal operator is annoyed with him for toot tooting before for no apparent reason. Thomas hits the cow.
  4. Thomas doesn't blow his whistle. Local people (and Gordon) have complained about his toot tooting and the fat controller is annoyed with him and not let him have a day off. He tries to stop himself. Thomas hits the cow.

Clearly we don't want a train crashing - for its own wellbeing obviously - but also because of the cost of repairing damage, lost business whilst it (and the track) are out of action and also being sued by the cow's owner. We also don't want to be in the news for having caused carnage, or face an investigation from regulatory authorities as to how a train with rubbish brakes was out on the tracks in the first place. So scenario 1 is good. Scenarios 3 and 4 not so good.

In a business context these four scenarios are interlinked on a number of levels. The first requires a culture where people are able to raise issues before they escalate. Speaking up - and listening up. The other end of the spectrum is the fourth and a culture where people can't speak up, or aren't (or don't think they will be) listened to.

In the middle sits all those complaints and issues which seem petty and frivolous. However, not dealing with scenario 2, or not managing that individual properly, can lead to scenarios 3 and 4.

So what can you do?

1. Understand what this is all about and ensure staff do as well.

2. Have a plan and put in place a framework.

This would include clear guidance on what should be reported as 'whistleblowing' and what is better dealt with under other processes (such as a grievance). It will also set out how to raise an issue (including using hotlines and anonymous reporting), and who is responsible for whistleblowing. It will set out what happens when an issue is raised and how it will be managed. This will also explain what will happen to those who raise issues in bad faith.

You should also be able to separate the alleged wrongdoing (the subject of the disclosure) from the individual themselves.

You can then build on this to put in the place the required governance including training, policies, and - depending on the size and nature of your business - also tracking and reporting on issues raised.

3. Break the silos.

It's part of the framework but deserves its own mention. You may have a separate whistleblowing team but ensure all stakeholders are aligned and work together. When a real whistleblow comes in does everyone know their role? Compliance, Legal, and HR will all have a part to play, but to manage whistleblowing properly - and to ultimately benefit from it - all parties need to work together.

4. Talk about it positively.

Referring to it as 'Speaking Up' is a common alternative to whistleblowing as an example. Whistleblowing automatically conjures up negative images and the stigma against whistleblowers sadly remains.

5. Show you mean it.

Reward those who speak up. We don't mean in a monetary sense but acknowledging when someone has done the right thing and taking this into account is an important validation. This could be in individual performance reviews, but also in highlighting in internal communications.

Finally, none of this is worth it unless people believe it means something. Tone from the top is key. Persuade senior management to champion it and get them onto a podium.


CECI NE CONSTITUE PAS UN AVIS JURIDIQUE. L'information qui est présentée dans le site Web sous quelque forme que ce soit est fournie à titre informatif uniquement. Elle ne constitue pas un avis juridique et ne devrait pas être interprétée comme tel. Aucun utilisateur ne devrait prendre ou négliger de prendre des décisions en se fiant uniquement à ces renseignements, ni ignorer les conseils juridiques d'un professionnel ou tarder à consulter un professionnel sur la base de ce qu'il a lu dans ce site Web. Les professionnels de Gowling WLG seront heureux de discuter avec l'utilisateur des différentes options possibles concernant certaines questions juridiques précises.