Conducting a whistleblowing investigation

Workers who have “blown the whistle” have statutory protection from detriment and dismissal, and awards for whistleblowing claims are uncapped. It is therefore unsurprising that organisations may feel less surefooted investigating a complaint which could constitute a “whistle-blow”. For example, a worker might call out misconduct at the senior level, flag compliance issues or raise concerns about organisational culture.

To help steer your way through, this blog looks at some things to consider when embarking on a whistleblowing investigation.

For a summary of the latest caselaw from the Employment Appeal Tribunal on this issue and a brief summary of the law, see our recent WorkLife blog.

Pick the policy

As a first step, ensure you have a good whistleblowing policy and that it is reviewed, understood and up to date. A good policy will make clear what whistleblowing is, how it should be reported, set out what will be done in response, ie that it will be investigated fairly and promptly, and that appropriate steps will be taken. A good policy will not over-promise and imply that the whistleblower will be kept abreast of all steps taken in response or ultimately be able to dictate how the matter is investigated and responded to (as this will rarely be possible or appropriate). It will also give examples of the types of issues that should be reported under the policy, and these should be tailored and relevant to your organisation. Additionally, it will be clear on what will happen if disclosures are made against even the most senior individuals in the organisation.

When a complaint comes in or a disclosure is made, take the time to reflect on whether whistleblowing is engaged. Something may be framed as a “whistleblow” when, in reality, the complaint is more personal and particular to the individual’s particular circumstances. A conversation with the complainant may help clarify this.

We sometimes see complaints raised that entangle more grievance-like issues with wider cultural/compliance concerns. Can you disentangle them and have two processes? Or is the issue more aligned with one area than another, such that it makes sense to proceed under one policy (ensuring the procedural requirements under any other policies are still accommodated)?

Reporting, scoping, staffing

It can be easy to rush to act when serious and significant concerns are raised. No complaint should be “sat on” but it is important to pause and calmly think through:

• What exactly is being complained of? Do you need to understand more before acting? Who might this involve in the organisation, who may be implicated, and who may be needed to provide evidence?
• Does it trigger any reporting requirements (for example: to Children’s Social Care, the Police, Charity Commission, Financial Conduct Authority or other regulators)? They may have a view about how your investigation is conducted and when.
• How can it be investigated? For example, will it require a forensic review of software or documentary evidence or will it rely on oral evidence?
• Who might be appropriate to investigate? Will they need any technical skill or sector knowledge to do so?
• Who would not be appropriate, for example, because they may be implicated in the complaints or be too embedded in the organisation to approach the task with an open mind? It is not uncommon for external investigators to be brought in where whistleblowing allegations are raised. They can bring greater objectivity and impartiality, and increase the chances of those who have raised concerns trusting and engaging in the process. Also avoid selecting an investigator who may need to sit as a decision-maker (including at any appeal stage) down the line.
• Do any immediate steps need to be taken in response to the complaint? For example, to support the welfare of the complainant, protect evidence or alert your comms team.
  
  

Taking the time to think these things through will help you properly scope and staff your investigation.

Avoid overpromising 

Many whistleblowers want to stay anonymous or at the least expect very high levels of confidentiality around their complaint and the process. Respecting their wishes, to the extent possible, will reduce the list of complaint (and possibly claims) from the whistleblower down the line. However, this can be difficult to reconcile with the need to conduct an effective and fair investigation which is able to properly collate and test evidence. We often see organisations run into trouble where complete anonymity has been promised and then, as things develop, the investigation requires their name to be shared or information to be shared which could indirectly identify them.

Understand from the outset your organisation’s policies and regulatory framework regarding what you can and cannot promise to whistleblowers or witnesses due to, for example, regulatory requirements or any statutory rights to anonymity. Where there are concerns in this regard, seek legal advice at the outset.

Think data

The proper management of data and evidence is key in any investigation but (as noted above) whistleblowers are likely to be particularly sensitive to this issue. There are no special rules or exemptions in the UK GDPR around the management of whistleblows or whistleblowers, so it will be important to apply solid data protection protocols and ensure special category data is properly identified and processed, and when information is shared it is done so on a proper basis.

When carrying out an investigation where lawyers are involved, it is easy to fall into the assumption that the documents created as part of the investigation will be legally privileged or protected from disclosure in some way. This will not always be the case, and this should be kept in mind when generating written correspondence and investigation documents. We often see Data Subject Access Requests being made by complainants, witnesses or other parties involved or Freedom of Information requests (where publicly funded institutions are involved).

What about witnesses?

It is easy to focus on the whistleblower and those who may be implicated in their concerns. However, witnesses being asked to give evidence are likely to be anxious about doing so and may have many questions and worries about the process: where is it going, will they be named, who will see their evidence, and will they be told the outcome? You should think these questions through before you meet them and before they share their evidence rather than having to correct or renege on your position after they have participated in the process. Witnesses in a whistleblowing investigation do not generally have the right to be accompanied, but you may wish to extend this regardless as a supportive measure.

Wrapping up

Remember that reporting back in some form to those who make whistleblowing disclosures is important to assure them that their concerns have been treated seriously and acted upon. They are less likely to feel that you have “failed to act” in response to their concerns (risking contravention of S47B of the Employment Rights Act 1996) and, in a broader sense, this can help bolster an open and accountable organisational culture.

Many thanks to trainee Scott McGrory for their help in writing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2024