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A Rise in Whistleblowing Complaints - Additional COVID Concerns

BB
BY Ben Brown
Employment Law & HR

As reported in August, we have seen an overwhelming surge in business streamlining their offering by making redundancies.  Running in tandem with this,  we have found an increase in the number of people who believe they've been selected for redundancy, or otherwise have suffered some manner of detriment in the process because they've 'blown the whistle'. 

This is particularly important as an employee in these circumstances can raise a claim in the employment tribunal, irrespective of their length of service.  Moreover, whistleblowing claims have uncapped awards so it can be very costly to get it wrong.

 

Identify what might be classed as a ‘protected disclosure’

An employee can only gain protection as a whistle-blower under specific circumstances.  They must disclose information which they reasonably believe shows a certain type of wrongdoing.  The information must relate to the commission of criminal offences, failing to comply with legal obligations, miscarriages of justice, endangerment of health or safety, damage to the environment, or deliberate concealment of any of these things.  

In the current climate the most likely issues are related to a breach of legal obligation, for example where the employee believes that their employer has defrauded HMRC in respect of the furlough scheme, or that they haven't sufficiently safeguarded the health and safety of staff who have returned to work. 

 

Get more information

If it is not clear what the employee is alleging, ask them to clarify their concerns so that you can investigate. Often employees may make vague statements such as that the workplace is not ‘COVID safe’. In these circumstances it is perfectly reasonable to ask the employee to provide more detail on what specific failings they believe are taking place in order that they can be addressed. The employee should be assured that their concerns will be taken seriously.

 

Speak to the relevant persons

It is worth making sure that all decision makers, where the decision may be construed as a detriment, are aware of the whistleblowing risks. Simple steps can be taken to mitigate the risk of bias creeping in to a redundancy selection exercise: for example, by having more than one manager undertake the scoring exercise, it becomes more difficult for the employee to argue that they were chosen exclusively by the person to whom they blew the whistle for that reason. Likewise, speak to anyone who is accused of subjecting a whistleblower to a detriment to remind them not to do anything else that the whistleblower could reasonably construe in a negative light.

 

Follow your policy

Most organisations have a whistleblowing policy. If you have one, follow it. A policy will help you to manage the expectations and appoint a different manager to consider the issues. The appointed manager should be independent from any other decision maker, for example in relation to an ongoing redundancy process.   

 

Don't let it derail your plans

Employees may make a protected disclosure in the hope that it will delay or avoid them being included in workplace change or give them leverage to negotiate an enhanced exit package.

 

Even where a protected disclosure has been made, you continue with plans that affect the whistleblower. For example, if you need to make redundancies, you do not need to exclude the whistleblower from the pool.  Provided you follow a fair selection procedure and can clearly and objectively demonstrate the reasons for their dismissal, this is allowable.  A sound business case and good documentary records will be of extra importance here to demonstrate that your decision was not affected by their disclosure.

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