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Employment Law Focus: Whistleblowing

Whistleblowing is growing at an alarming rate and becoming increasingly complex.

The decisions you make early on in a whistleblowing investigation can have a profound impact on the risks and how the investigation unfolds.

It is also increasingly common for new issues to arise throughout an investigation, and issues can still arise after an investigation has concluded.

In this episode, we discuss:

  • How to distinguish between a whistleblowing claim and a personal grievance.
  • Where the biggest complications can occur, and ways to deal with them.
  • Your obligations to the whistleblower, accused and anyone else who may be affected, including the whistleblower’s protection from dismissal and detriment.
  • Key questions, like who should be involved; how to manage crusading and maverick whistleblowers; defending your reputation in the media; data protection obligations; and proactive reporting to the regulator.

In our news round-up we cover:

  • A ruling that ethical veganism can be protected under the Equality Act.
  • New technical guidance from the EHRC on tackling sexual harassment at work.
  • The use of love contracts and #MeToo Bots. 

Send us your questions for the next episode – email emplawpodcast@tltsolicitors.com or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment.

Transcription

Jonathan Rennie:

Hello and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner and a member of TLT's UK-wide employment team, and I'm joined by Chantal Peters, an associate in our financial services disputes and investigations team.

Our main topic today is whistleblowing; an issue that's very much on the rise and affects all kinds of businesses. HR teams need to work very closely with other departments to make sure these types of complaint are handled appropriately, and we're going to look at how the decisions you make early on in an investigation can have an impact on the risks and how the investigation unfolds.

Jonathan Rennie:

Whistleblowing has been protected by law since 1998, but it seems people are becoming a lot more willing to speak out about suspected wrongdoing in connection with their employment. In fact, Expolink's last annual whistleblowing report found that the number of new whistleblowing complaints per a thousand employees has jumped from 2.1 in 2016 to 3.3 in 2018, which is actually a 57% increase. I wonder, Chantal, is this something you've seen in practice?

Chantal Peters:

Yes, I think those figures ring true for me. We've certainly seen an increase in the frequency of reports and an increase in complicating factors for firms, like subsequent grievances being raised by the whistleblower, which is something we'll look at a bit later. So, in this episode, we're going to look a bit more at some of the traps that companies can fall into based on their early decisions, and we'll share some best practice advice in handling these situations.

Jonathan Rennie:

Before we delve into our main topic, there have been some employment law news stories that I think are worth touching upon very briefly and that pick up on some discussions from our previous episodes.

January 2020 was apparently the most popular veganuary to date, and this reflected a growing veganism movement in the UK. You may have seen that we've now had a decision in the employment tribunal about whether veganism can be a philosophical belief that's protected under the Equality Act. The tribunal ruled that ethical vegans can be entitled to protection.

Chantal Peters:

So, it sounds like ethical was the key word here.

Jonathan Rennie:

Absolutely. So, the claimant in question practices ethical veganism, and this is embedded into his life in a way which goes far beyond a simple dietary or health choice. So, for example, he will not allow animal products into his home, he walks rather than use public transport to avoid harm to insects.

Chantal Peters:

I think I've read somewhere he avoids using cash because bank notes contain animal products.

Jonathan Rennie:

Yeah, that was a learning point for me. He even avoids touching leather straps on public transport. This was widely reported as a landmark decision, but do remember it was at tribunal level only, so another tribunal could reach a different conclusion on the same facts. However, this does open the door to people being able to claim protection from discrimination and detriment. It's also very interesting to see how a reasonably new consumer trend like this can have such a profound impact on employers and the importance therefore of bearing these trends in mind from a risk management perspective.

Jonathan Rennie:

Also, we wanted to provide the latest development in the wake of the Me Too movement, that being that the Equality and Human Rights Commission has now published new technical guidance on tackling sexual harassment at work. It is absolutely well worth having a read of this document, which we'll talk about in future episodes and in our episode notes because it contains a wealth of practical and very useful information about responding to and preventing workplace harassment. Particularly, have a look at the last section, which looks at what we've previously described as the reasonable steps defence available to employers as well as dealing with the thorny problem of malicious complaints.

Chantal Peters:

What is also useful to note is that the University College London has introduced a ban on staff-student relationships, which appears to apply to the situation where there is direct supervision and can lead to disciplinary sanctions where staff do not abide by its terms. We have discussed these love contracts in episode two, and of course, since then, the McDonald’s CEO left his post after revelations concerning his personal relationship at work.

Jonathan Rennie:

Yeah, and I think since we first talked about this, there've been quite a few unconventional approaches to tackling this issue by companies, Chantal.

Chantal Peters:

Yes. I saw a recent article about Me Too bots being used to identify digital bullying and sexual harassment using artificial intelligence. It reads any potential red flags in documents, emails and instant messenger chats at work, and then sends that to a lawyer or a HR manager for further investigation.

Jonathan Rennie:

Our final news item is to highlight like the clocks, some employment laws moving forward this spring with significant changes to statutory employment particulars in effect from April 2020 as well as a new right to parental bereavement leave. The exact details of these two new pieces of legislation can be found on our website in the employment section of our insights page.

Chantal Peters:

Now, moving onto our main topic for today: whistleblowing.

Jonathan Rennie:

So, the stats are undeniable. Whistleblowing is growing at an alarming rate, and regulators like the FCA are also reporting a significant increase (in this case, a 24% increase between 2018 and 2019).

Chantal Peters:

Also, we have seen whistleblowing in mainstream news. The Queen Elizabeth Hospital in Glasgow is one such example. Here, whistleblowers have exposed a scandal at the hospital involving dirty water with cases identified as far back as 2016 where patients who were consuming water were falling ill. There was also ongoing litigation between the NHS and the builder of the hospital, which is inextricably linked to the dirty water and the infection scandal.

One of the most significant whistleblowing cases in recent times involved Edward Snowden who leaked highly classified U.S. governmental information in 2013. He sought asylum in Russia as a result, where he now resides. There are even a spate of Hollywood movies coming out about whistleblowers and the DuPont chemicals business in the U.S.

Chantal Peters:

I think it's worth saying at the outset that enabling employees to blow the whistle and having effective whistleblowing procedures is fundamental to good corporate governance, culture and risk management, all of which are important for companies today. It supports the identification, correction and prevention of poor culture in the business and protects whistleblowers from dismissal and detrimental treatment as a result of speaking up.

Jonathan Rennie:

Yeah, I definitely like that terminology about speaking up, and it's definitely the case that every business should have a whistleblowing policy in place and be reviewing it regularly to make sure it's effective.

Chantal Peters:

I think people are increasingly likely to speak up about their concerns these days because businesses have an important role to play in addressing some systemic issues in our society, like protection from invasion of privacy and sexual harassment, for example.

There have also been a number of high profile cases that have made people more aware of their rights and examples of whistleblowing investigations leading to industry wide change. I think it's fair to say though that historically, there was a school of thought that whistleblowers were driven by financial motives, particularly as there is no cap on compensation for whistleblowing claims.

Jonathan Rennie:

Yeah, there's no cap on whistleblowing, and that's why when organisations have these claims, they're very high value ones. So there's an example of a former chief executive being awarded almost two million pounds after he raised concerns about senior management and their conduct in Africa.

As you've said, whistleblowers are protected from dismissal and detrimental treatment where they raise such a concern and speak out. So, a whistleblowing claim can result in individuals going above the cap on unfair dismissal awards.

Chantal Peters:

Is social media having an impact at all?

Jonathan Rennie:

Definitely. In a social media age, many organisations will be less worried about the financial impact of a whistleblowing claim and may be more worried about the whistleblowing allegations becoming part of their permanent digital footprint. For example, if a prospective employee types an organisation's name into Google, no organisation wants the first five results to be focusing in on a whistleblowing claim or a poor culture regardless of whether or not that claim was successful.

And it's also worth noting that whistleblowing channels can often be used in error, for example, when the employee thinks their complaint qualifies as whistleblowing, but in fact, it's something else. I think particularly, that's relevant to deciding what steps an organisation takes when faced with a complaint.

Chantal Peters:

Yes, it certainly is. It's not always easy to spot what is a whistleblower report and what is actually a personal grievance, for example. This can actually get quite complicated. Interestingly, the Public Interest Disclosure Act 1998, which first recognised whistleblowing was a bit of a misnomer because there was no requirement for any disclosure to be in the public interest. But this was remedied in 2013 following a number of cases where employees brought whistleblowing actions based on wrongdoing that only related to them personally.

However, unhelpfully, the Act does not define what is meant by public interest. This raises questions. When does a group of people become public, and when does a concern relate to their interest? It has been left to the courts and the tribunals to decide these questions, and in general, the bar has been set fairly low.

Chantal Peters:

What is clear though is that wrongdoing, which solely relates to the whistleblower's own contracts of employment or which is of a private nature such as a personal grievance, is not protected. For example, we see many cases where a whistleblower has alleged that they were discriminated against in a promotions process. This would not be a protected disclosure as the instance of discrimination only concerns the whistleblower.

However, the position may differ if the allegation was of a widespread culture of discrimination within the organisation or parts of that organisation. Previous case law has established that the disclosure can be in the public interest if it concerns a whistleblower's own interests, but also, those interests of a relatively small group of co-workers.

Jonathan Rennie:

So, let's look at some definitions then. The law actually protects six different types of malpractice or failure and these are firstly, criminal offences, secondly, breaches of any legal obligation, thirdly, miscarriages of justice, and then we have danger to health and safety, damage to the environment, and finally, the deliberate concealing of information about any of the above. That malpractice or wrongdoing can be past, present, prospective, or even merely alleged.

Chantal Peters:

Now, employers often find that the breach of any legal obligation category can be tricky to navigate as it is so widely drafted. We frequently see whistleblowers attempting to shoehorn all manner of issues into this definition.

For example, we've seen a case where a worker alleged that the organisation's systems inhibited the amount of business they could generate and in turn, the amount of profit that the organisation could make. This didn't amount to a protected disclosure on the grounds that there was no particular legal obligation associated with these points. Now, this is often a preliminary point in litigation proceedings whether that has actually been a protected disclosure.

Jonathan Rennie:

Yeah. One part of the definition which often gets overlooked or muddied is that there doesn't actually need to be any wrongdoing, and the whistleblower doesn't need to think anything has happened as yet. The true question certainly for an employment tribunal is whether the individual in question actually believed the wrongdoing was taking place or was likely to take place and that they were reasonable in holding that belief.

Neither do whistleblowers need to have any understanding of those different categories of law that come into play or even to specify those legal grounds on which they are bringing their complaint.

Jonathan Rennie:

For example, in a 2007 case called Babula v Waltham Forest College, a teacher raised concerns regarding possible incitement to religious hatred in a school, wrongly thinking he was reporting a crime. At the time of the events in question, there was no such crime of inciting religious hatred. Nonetheless, that did not prevent his disclosure from being a valid public interest disclosure on other grounds.

So, provided there is a genuine whistleblowing complaint, one of the things the investigations team need to be really mindful of is how to deal with that whistleblower from day one until after the investigation.

Chantal Peters:

Yes. Now, this is a key part of your legal obligations as an employer and can have a big impact on the risks and the investigation. On receipt of a whistleblowing report, it can be easy to go into defence mode and to take the view that this is just a disgruntled employee. However, there may be some truth in the allegations, so each report should be treated with open eyes.

It makes sense as a general rule to interview the whistleblower at the outset of the investigation, to gather as much detail – and where possible, to keep him or her updated throughout the process on progress and taking care to ensure that privilege or confidentiality is not impacted.

Jonathan Rennie:

I think also in my experience, if there's a health and safety dimension to the alleged whistleblowing, then the organisation may need to determine whether a proactive report should be made to the health and safety executive or whether an internal investigation report is drafted first for internal purposes only before such a leap is made to the regulator. There can clearly be advantages to proactive disclosure to a regulator as it shows an upfront transparency and may indeed result in a regulator even assisting with the investigations.

These points definitely need some thought, and I think, Chantal, you will have seen this in the financial services sector also with the FCA?

Chantal Peters:

Yes, Jonathan. Involvement of the regulator at an early stage is definitely something organisations feel a bit scared about, and you can see why. However, it can be useful to engage regulators at an early stage. They can often input into scope, and that ensures that the conclusions or output from the investigation is robust. It's not always as easy as it sounds though, Jonathan.

Jonathan Rennie:

No, I mean that idea of collaboration with your regulator can often lead organisations to feeling a little bit uneasy. Of course, it might depend on a particular regulator. But this is all part of the decision toolkit that HR and management teams need to think about at that early stage of a whistleblowing investigation.

Chantal Peters:

In my experience, an area where we see a particular challenge is if the whistleblower is not forthcoming with information. For example, if the allegations are non-specific or the whistleblower is anonymous. Clearly, any investigation can only be limited to the information that is in front of you.

Jonathan Rennie:

Yes, absolutely. Employers need to carefully determine the balance of their investigation, scope it out properly and adapt that to the facts presented.

Of course, another complicating factor is when the whistleblower does not want allegations to be put to specific individuals for fear of their identity being uncovered. That may very well be the case if the misconduct has occurred in, for example, a small and close-knit working team. If that is the case, then any questions put to those that are accused would have to be limited in order to protect the identity of the whistleblower.

You should, when involved in these matters, try to explain those limitations on the investigation to the complainant, and make sure they understand how this may impact the outcome. Certainly, again, when I've been working on these in practice, the idea of anonymity might lead the whistleblower to suggest that their complaint has not been taken seriously, and obviously, that's not the case and an organisation should explain that to the whistleblower.

Chantal Peters:

I think a further area where we see mistakes being made is organisations focusing too heavily on the specific allegations at hand and not keeping their minds open to other issues that may emerge during the course of the investigation and then flexing their investigation plan accordingly.

We often refer to this as the mushroom effect. One concern is raised, and then it mushrooms into a number of connected concerns. For example, we've seen cases where the initial allegation is focused around institutional racism, and then once the investigation was underway, uncovered breaches of regulatory obligations, which in fact put customers at risk of poor treatment.

You should constantly assess the information you're being presented with, and you might need to get different people involved as the case progresses and new concerns emerge from the woodwork.

Pastoral care is really important as well and one that often gets overlooked in the early stages of an investigation.

Chantal Peters:

Now, that includes for the whistleblower, those accused or anyone else who is proximate to the misconduct. Remember, the investigation process can be difficult for everyone involved, and consideration should be given as to whether it will impact the day job.

Practically speaking, this consideration may go wider than those implicated in the investigation. For example, we've seen cases where a couple of individuals implicated had been taken out of work, but then this places pressure on those left to do the day job.

The pastoral care piece is particularly important as we've seen an increase in the number of grievances raised following a whistleblowing investigation due to process or pastoral care issues. It is important to get these things right. Employees have to have faith in the process in order to be empowered to speak up, and on a practical level, those providing the pastoral care should be separate from the investigation team in order to avoid any suggestion of a conflict of interest.

Jonathan Rennie:

Now, moving back to the two key protections granted to a whistleblower that apply after they've raised the concern and potentially after the investigation has been concluded. These are firstly, protection from dismissal and secondly, protection from detriment.

Chantal Peters:

This is a really important point, Jonathan. We've seen a lot more people bringing claims after a whistleblowing investigation has concluded, so it's really important to understand the risk.

Jonathan Rennie:

So, let me be clear then. Where we’re looking at the protections from dismissal, the law states that a dismissal will be automatically unfair if the reason or principal reason for the dismissal is that the individual has made a protected disclosure. And unlike conventional claims for unfair dismissal, that employee is entitled to this protection from day one of their employment. So, there's no minimum qualifying period of employment before an employee can claim they were unfairly dismissed for blowing the whistle.

If we look at the protection from detriment, detriment's an unusual word; it doesn't have a specific statutory definition. But it has to mean more than just a general sense of grievance or being unhappy about treatment at work.

To give an example of the limit of the meaning of the word detriment, in a case called Blackbay Ventures v Gahir, the Employment Appeal Tribunal find that there was no detriment where a pharmacist had raised some complaints about complying with the control of medicines to which the employer responded promptly and in detail and also shortly after which the employee had in fact left the business.

Jonathan Rennie:

In that case, it was held that there could only have been a very, very short period of time during which the employee suffered any stress as a result of her disclosures. These two key protections are also afforded to workers i.e. those that provide their services personally and not just to employees.

There are also some specific categories of worker, which are brought into the scope of whistleblowing legislation, such as agency workers, student nurses and self-employed doctors. So, please don't try to avoid a whistleblowing claim on the basis of the status of the complainant.

Chantal Peters:

Now, helpfully, the Whistleblowing Commission's Code of Practice, which we will link in the episode notes, provides examples of disadvantages which could amount to detriment. Some of the less conventional examples include a denial of training, blocking access to resources, unrequested reassignment, relocation and a failure to investigate a subsequent concern. There's also another area of legal complexity relating to detriment and dismissal that I wanted to flag, and that relates to causation.

Jonathan Rennie:

Yeah. Around causation, an employment tribunal has to decide whether or not a protected disclosure was the reason or the principle reason for the dismissal or the detrimental treatment. One that really gets the lawyers quite heated.

So detriment claims require an analysis of the mental processes (both conscious and unconscious) of the employer. Clearly this can be quite difficult. It's not sufficient to demonstrate that, but for the disclosure, the employer's act or omission would not have taken place. The test is actually similar to that used in direct discrimination cases, except that there is no statutory requirement for a comparator.

Now, there are a few areas where it can be tricky to establish a direct causal link between the disclosure and the dismissal. For example, delayed disclosures, the passage of time, then we've got, sometimes what are called crusading whistleblowers and even maverick whistleblowers.

Chantal Peters:

Yes, timing can be a tricky issue here. There's no judicial or government guidance on this point, but the likelihood is that the longer the gap between the disclosure and the action taken by the employer, the less likely it is that a causal link will be found.

Jonathan Rennie:

Yeah, I think that's common sense.

Chantal Peters:

Another practical problem we see quite a lot is the crusading or campaigning whistleblower. That's someone who's particularly forceful with their complaints. Now, these individuals may have genuine concerns, but they can be troublesome for employers, and it can take a lot of management time to deal with them.

I think the key point to remember here is that in amongst lengthy concerns, there may be some truth, and so you should not automatically dismiss the concerns or immediately go into defence mode denying everything that's put to you.

Jonathan Rennie:

Definitely this is an area which may require some patience and particularly active management of the workers' disclosures. For example, not responding to each and every individual email or disclosure but explaining to the worker that you will deal with everything together (for example, once a day or even once every two days).

So, in saying all that, for an organisation, you're not expected to have absolutely limitless tolerance for a campaigning whistleblower. The Employment Appeal Tribunal has actually confirmed that there is a difference between the employee's protected disclosure and the manner of complaining. So, for example, in the case of a dismissal, the employer's reason for dismissing the employee may be the increasing frustration about the campaign rather than the protected disclosure itself.

Chantal Peters:

I do think employers should take care here though. The courts and tribunals will be alive to artificial attempts to use causation arguments to sidestep a whistleblowing disclosure.

For example, in a case called Trustees of Mama East Africa Women's Group v Dobson, the Employment Appeal Tribunal rejected an employee's argument that the reason for the dismissal was not the protected disclosure itself, but the fact that the allegations contained in it were false. The tribunal held that to allow such an argument would be contrary to the purpose of the legislation.

Jonathan Rennie:

I think my main point here is that causation is one for the courtroom, and the employer should therefore not look at those causation arguments at the outset of an investigation. It's really something that follows through if legal proceedings are initiated and one to think about in defending these complaints.

Chantal Peters:

Now, what about if an employer feels that a crusading whistleblower is damaging their reputation and wants to, say, defend itself in public?

Jonathan Rennie:

This did in fact happen in the very recent case of Jesudason v Alder Hey Children's NHS Foundation Trust. In this case, the whistleblower was a paediatric surgeon who made a number of disclosures about his concerns linked to failings at the children's hospital. After he left his employment, he relayed his concerns in various publications.

The Trust's response was very defensive and even went as far as suggesting that the doctor was weakening genuine whistleblowing cases. Was this of itself detrimental treatment of a whistleblower or simply the Trust defending itself from attack? The Court of Appeal said that this could amount to a detriment even after the individual had left employment.

Chantal Peters:

I think in my view, employers should provide a mechanism for whistleblowing while employees are still at work and also help facilitate those disclosures, as this could potentially deter an immediate disclosure to the regulators. If the culture of an organisation encourages feedback, that can help capture these issues at an early stage.

If matters are disclosed to the press, then that should not of itself alter the internal approach to the investigation as that could be a further detriment to the ex-worker.

Now, in rare cases, you may find workers stepping beyond just making a protected disclosure in order to prove their point, and they may commit an act of misconduct when doing so. This is often called a maverick whistleblower. What should employers do in this scenario?

Jonathan Rennie:

Well, this actually happened in a case called Bolton School v Evans when a worker attempted to prove his point that the school's IT systems were not secure. How did he do that?

Chantal Peters:

Well, he actually hacked into the system himself, and he proved that the school systems were weak. But in doing so, he was guilty of misconduct and received a written warning.

Jonathan Rennie:

I think his whistleblowing claim actually failed because the warning related to his misconduct and hacking the school system and not the protected disclosure. So, his disclosure and his misconduct could be separated out. There was no causation.

So, taking all of that on board, we still need to tread very carefully here. The flip side of the scenario is that if the discovery made by a maverick worker is actually the real reason for disciplinary action or dismissal, then it is likely that it will fall within the whistleblowing protections.

For example, in one recent case involving a recycling company, an employee made out-of-hours visits to the employer's waste recycling site without permission to take photographs of alleged illegal burying of waste, which he then passed onto the local authority.

He was dismissed apparently for the gross misconduct of trespassing. But an employment tribunal found that no reasonable employer would have considered these visits to be gross misconduct and that the real reason for his dismissal was the obvious one of the reports to the local authority.

Chantal Peters:

So, I think an important decision an organisation should make upfront is who actually should be involved in the investigation. Often, we find HR will be the recipient of a whistleblowing complaint, but it may actually be appropriate to get other people involved.

Now, there can be a natural tendency to deal with whistleblowing at the managerial or localised level. But remember, no one whistleblowing investigation is the same as the next, and the approach should have a degree of flexibility built into it.

Investigation teams may combine multiple disciplines drawing from in house legal teams, HR, audit, risk and even external counsel. On a practical level, those included should be limited on a need to know basis, and that is in order to maintain the confidentiality of the whistleblowing process.

Jonathan Rennie:

I wonder if you could maybe talk through some of the benefits of giving early consideration to who should be involved in the process.

Chantal Peters:

Yes, I do think that that is a key early consideration. For example, the early engagement of HR may assist with determining whether the allegation is truly a protected disclosure or whether it is a personal grievance as we have discussed earlier.

HR can also help in cases where the alleged misconduct is serious and there needs to be a prompt decision on whether the suspension of a colleague is required in order to stop misconduct. For example, we've seen cases where it is alleged that an employee is defrauding customers, and so it is imperative to protect customer's funds.

Early consideration should be given to those 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. For example, an allegation of harassment may name the individual accused of harassing but then also include a statement that management were aware of their harassment but turned a blind eye (so essentially, management facilitated the misconduct).

Chantal Peters:

Now, anyone considered potentially proximate to the allegations should not be involved in managing the investigation or in the decision-making. That's in order to protect the integrity of the investigation but also the identity of the whistleblower.

The same can be said for individuals who may be conflicted – for example, due to their personal relationship with the individual accused.

Proximity and conflicts are definitely considerations which should be kept under review as the investigation progresses, and more information about the misconduct is gathered.

Jonathan Rennie:

Definitely. And depending on the nature of the allegations, it may even be beneficial to engage your PR and your risk management teams at an early stage also. The Me Too campaign has led to increased media attention on whistleblowing and a sense that media attention can force allegations to be treated more seriously. It can therefore really be very useful to engage PR and risk teams along the way in an attempt to mitigate any reputational damage.

Jonathan Rennie:

Finally, another important thing and a real life legal consideration that you don't want to lose sight of, is the question of how far you want to get into the investigation before thinking about whether it should be recorded.

Our advice would be that you should try to keep a record of all the steps taken and the key decisions made during the investigation, taking care to ensure that legal privilege and confidentiality is not impacted. This includes preserving documents, searches and reviews, keeping notes of conversations with employees and third parties and actions that you may have taken to test or even validate the misconduct.

Decisions around that investigation scope, those involved in the process, engagement with the whistleblower, and those being investigated, the pastoral care piece, and the outcome of the investigation should also be documented, which is easier said than done.

Chantal Peters:

I do think this is a really important consideration. Now, a clear audit trail can ensure that any subsequent challenge – so in the employment tribunal or as I say, grievance – can be robustly defended.

Separately, when lawyers (that be in house or external) are involved in an investigation and thereby attracting legal privilege, a useful tip can be to maintain an in-the-know list. This is a list that records who is aware of and who is involved in the investigation and also the reasons why.

This is useful as it serves as a record of the decision makers and those from whom instructions can be sought, which is essentially the client team. This can assist with ensuring privilege is not lost, for example, by sending information outside of that client group.

Jonathan Rennie:

I really like the sound of that in-the-know list. I think in all the investigations, that has a degree of rigor and control and prevents that horrible scenario of leakage where people find out about the whistleblowing complaint and then the whistleblower says that they've been mistreated in a way that they weren't expecting.

Of course, data protection is going to be very important around this also. We've obviously seen an increase in the number of individuals being investigated who then make subject access requests or DSARs, in an attempt to get an idea of the sort of personal data that the investigation team holds about them, including perhaps opinions expressed by other colleagues. We know that's a strong tool that individuals have in the workplace, and you can hear more about those types of DSARs in our previous episodes.

All the whistleblowing processes need to comply with the General Data Protection Regulation. Practically speaking, this means keeping all the information gathered during the investigation safe and secure, limiting access to documents to those people who need to know, and limiting the collection of personal data where possible. This is particularly important in case that individual then raises a DSAR.

Chantal Peters:

So, I think we've just got time for one question, and this is one that we see coming up time and time again. And that is: what should we do if we cannot easily distinguish between a personal grievance and a whistleblowing report? We've touched upon this slightly earlier on in the podcast, but can you give some more context?

Jonathan Rennie:

Yeah, I think my answer to that one is firstly, take action. Don't hold back and delay your processes and your investigation. In reality, both of these issues are going to have to be properly investigated, so getting tied up in the definition or the categorisation can actually be a bit of a red herring.

The important thing is that the allegations are properly investigated. In many cases, it might be sensible to undertake an initial fact find in order to get a clearer sense of which route to follow, and this is where I think HR engagement can be really beneficial as we have discussed.

I don't actually see an employment tribunal or a regulator being too concerned about the label of an investigation so long as it is a thorough and well thought-through process.

Jonathan Rennie:

My final word on that is, an employee does not need to label a complaint as whistleblowing for an organisation to actually initiate its whistleblowing processes. And so decision makers need to know and understand what whistleblowing and speak up scenarios look like, to deal with them in the way that we've described in this podcast.

Jonathan Rennie:

Thank you, Chantal, and thanks to all of you for listening. We aim to cover the biggest topics that are affecting HR teams today, so please do get in touch if there's something you'd like us to look at on our podcast.

You can email us at emplawpodcast@tltsolicitors.com or tweet us using #TLTEmploymentPodcast and tagging @TLT_Employment. If you are enjoying the podcast, you can rate and review it, which means that more people can find it and take a listen.

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Jonathan Rennie:

The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

 

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