When staff raise allegations of wrongdoing, it's tempting for an organisation to go onto the defensive. However, the truism that the cover-up is worse than the crime is highly relevant in these cases. In order to avoid falling foul of the law, and to minimise the legal and reputational fallout, it's important for organisations to handle complaints in a considered and legally compliant fashion. Although there is no one-size-fits-all method, employers should bear in mind some key principles.
- Assess which procedure applies
If an employee is raising concerns about their own employment, it's usually more appropriate to deal with it under your grievance procedure rather than as a whistleblowing complaint. On the other hand, if the allegations relate primarily to the actions of the organisation from a legal/compliance/ethical perspective, rather than being focused on the employee's own position, the whistleblowing procedure may apply. It probably won't be helpful to try to assess definitively whether the complaint amounts to a “protected disclosure” under whistleblowing legislation: there may not be enough information at the outset to do so.
2. Determine who should investigate the allegations and who needs to be involved
If the issue raised is a legal or compliance one, the investigator may need specialist skills or knowledge in order to evaluate the situation. Although it may be useful to engage external legal advisers to carry out the investigation, you will need to consider carefully whether the organisation wishes to rely on legal privilege. While this may enable the organisation to understand its legal risk while minimising the extent of disclosable material, it also means that the investigation is unlikely to be seen as independent. Reputationally, this can be damaging. Employers need to weigh up the pros and cons on a case-by-case basis, depending on the nature of the allegations
3. Confidentiality and avoiding reprisals
Whistleblowers are often highly concerned about their identity being revealed. Employers should consider carefully whether it is necessary for their identity to be known to the investigator. In many cases, the identity of the whistleblower will be irrelevant to the issues under investigation and should not be disclosed. If it does need to be disclosed, this should only be done on a “need to know” basis, weighing up the need to avoid reprisals against the need for an effective investigation which is fair to any individuals accused of wrongdoing. Any documents containing identifying information should be protected through passwords and limited access permissions to minimise the risk of disclosure.
The employer must also consider how the whistleblower can be protected against reprisals: where possible, individuals who are responsible for decisions about promotion, bonuses and pay should not be made aware that they are a whistleblower. If this is unavoidable, their decisions should be reviewed to ensure that they are fair and consistent with the treatment of others in the business.
4. Communication with the whistleblower
It's important to manage expectations about how much information will be provided to the whistleblower during the investigation and once it has concluded. The more transparent the organisation can be, the less likely it is that the whistleblower will become disaffected, but this needs to be balanced against legal risk exposure and the rights of other employees (including those accused of wrongdoing). Any disciplinary proceedings should be treated as confidential until fully concluded (and even then employers should be circumspect in sharing this information). Employers should make it clear from the outset that they may not be able to provide all details of the investigation to the whistleblower, to reduce the risk of disputes arising.
Want to hear more from us?
SUBSCRIBE TO E-ALERTS 
Main contact
Alexandra Mizzi, Legal Director
