Incidents of whistleblowing at charities have increased and any disclosure can have a significant reputational impact on an organisation whatever the outcome of investigations, so it is important for charities to take any disclosure seriously. Stone King partner Peter Woodhouse, head of business sector and employment team, sets out top tips for charities managing a whistleblowing incident.
What is whistleblowing?
The legal definition of whistleblowing is a disclosure of information that, in the reasonable belief of the whistleblower, is made in the public interest and tends to show that
- A criminal offence has, is or is likely to be committed;
- A person has, is or is likely to fail to comply with any legal obligation;
- A miscarriage of justice has, is, or is likely to occur;
- The health or safety of any individual has, is, or is likely to be endangered;
- The environment has, is, or is likely to be damaged; or
- Information falling within any of the above paragraphs has, or is likely to be deliberately concealed.
A disclosure can be made to various people, including the employer, the Charity Commission, other regulators and potentially the press.
In our view, if a matter is brought to a charity’s attention, it is a high-risk strategy to seek to justify inaction on the basis that the complaint did not technically amount to whistleblowing.
Be aware that there is no longer a requirement for a whistleblow to be “in good faith”. So even if the complaint looks designed simply to cause trouble then it should not be ignored for that reason. The complainant must have reasonable grounds for their belief in the complaint, but that is not a high hurdle and it is also notoriously difficult to assess at the point decisions need to be made.
What protection is available to employees and workers?
The legislation protecting whistleblowers applies to employees and workers. However, anyone can whistleblow so complaints from any person with whom the charity comes into contact should be acted upon.
If someone can establish they are a whistleblower, then an employee or worker is protected from suffering detriment on the ground that they blew the whistle, and from being dismissed if the reason or principal reason is doing so. They have this protection from day one.
A successful complaint can result in compensation for financial losses and injury to feelings. In case of dismissal, an employee does not need two years’ service before bringing a claim, and there’s no cap on the compensation they can recover.
Therefore, charities need to be very careful in handling complaints that may amount to whistleblowing, particularly before considering disciplinary proceedings that may result in dismissal.
What to do if you receive a whistleblowing complaint?
The steps to follow are:
- Determine whether or not the complaint is whistleblowing. Usually, if it relates to the person complaining it’s a grievance; if it relates to something or someone other than the person complaining then it’s likely to be whistleblowing. However, a complaint can be both a grievance and whistleblowing.
- Investigate. Speak to the whistleblower for further information and evidence. You may then need to speak to others involved, and consider relevant paperwork and computer records. Establish whether the complaint has merit and, if so, what remedial action is necessary.
- Consider whether a Serious Incident Report should be made to the Charity Commission. The timing of the report will depend on circumstances, but could be when the complaint is received, or at the end of investigation.
- Consider what information should be shared with the whistleblower following investigation. It’s important they understand they have been taken seriously. However, you will also have to consider the confidentiality of others involved, and therefore may not be able to give the whistleblower all the details.
What about anonymity?
When possible, encourage a whistleblower to share their identity so you can fully investigate their complaint. However, if they refuse, you will still need to investigate based on the information you have.
Individuals often ask to remain anonymous for fear of repercussions, particularly in small charities where it may be obvious who has made the complaint. You should not give any assurance in relation to preserving anonymity but should seek to respect the individual’s wishes. Be mindful of the whistleblower’s protection from suffering detriment, which employers could be liable for.
What about confidentiality?
It is unlawful to seek to prevent someone whistleblowing through the use of confidentiality provisions. For example, you cannot use an employment contract or a confidentiality agreement in a settlement agreement to prevent whistleblowing.
If an individual discloses confidential information to a third party, you would need to be very careful about taking action for breach of confidentiality, as such action may result in a claim of detriment.
What should your whistleblowing policy contain?
Your policy should:
- Identify to whom complaints should be made, usually a nominated trustee. You could consider having a dedicated email address for such complaints.
- Make clear how an individual raises a complaint, and the process once a complaint is received.
- Make clear whether the outcome of the investigation will be shared with the whistleblower, and what happens if they are not satisfied with the outcome.
- Be clear about support for a whistleblower, and expectations of other staff in relation to how they should treat a whistleblower.
It is important that charities, and trustees in particular, recognise the importance of individuals sharing information of wrongdoing. A whistleblower may be the only way that trustees become aware of wrongdoing within their charity.
If you want to know more, would like a whistleblowing policy, or would like training for senior managers and trustees, please contact Peter Woodhouse.
