July 29, 2021

Volume XI, Number 210

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Not Music to the Ears – Whistleblowing at the End of Lockdown (UK)

In our webinar last week we looked at the law around whistleblowing with particular reference to how what is now quite an old legal concept may be used for the best or worst of reasons by employees returning to the office. The good faith airings of concerns around gaps in the employer’s Covid precautions must be welcomed, but we anticipate considerable resistance in other quarters to a return to full office-based working, and little puts a spoke in the employer’s wheels on that front quite so effectively as a health and safety-related complaint. After all, there is little that is definite in the precautions that any given employer must take, merely all those that are reasonably practicable. As the issue of reasonable practicability is to some extent a matter for the eye of the beholder and the risk from covid so obvious if proper precautions are not taken, it is rarely difficult for an employee to claim that something more could be done or have been done and therefore that the employer is in breach. Is that a grievance, an objection under Sections 44 or 100 (see Dealing with health and safety fears of returning to the workplace (UK)), a protected disclosure or all three? Does it matter? We expect an upswing in all of them, perhaps combined tactically with flexible working applications to remain WFH for so long as possible.

In the webinar, we took a quick look at all the rights which whistleblowing employees do not have (a longer list than you might think) and some practical tips for dealing with those which they do.

There was a somewhat subdued set of questions through the chat facility thing – please see the first two below with the third due later this week or early next.

1. What is the employer’s responsibility to report criminality if that is the essence of the protected disclosure?

There is no general duty under English law to report perceived criminal conduct. The websites of concerned bodies such as the Police and Crown Prosecution Service refer gamely to a moral duty, but that is usually as far as it goes apart from exceptions in particular fields such as the legal profession and for regulated entities in the financial services sector where a proactive duty to report certain suspicions exists, e.g. around money-laundering. Once the suspicion has hardened into reasonable belief after due investigation, there are number of regulators which would require to be notified because of the impact of that conduct on the employee’s professional suitability, but that is not the same as a report to the Police.

Some pointers to note around this:

a. Making the question of a report to the Police expressly dependent on whether the employee you perceive to be responsible for the criminal conduct “goes quietly” and signs a settlement agreement is obviously very unattractive, and not something which you could effectively prevent the employee who blew the whistle from making public or taking to the Police at a later stage anyway. The more socially unacceptable the alleged criminal conduct, the worse the potential PR hit caused by any suggestion of an attempt to brush these things under the carpet.

b. Remember that a whistle-blower cannot be prevented from making a disclosure to the Police at any time, including as part of a settlement agreement, so one question will be whether you want to be on the front-foot on that rather than reactive if the Police come knocking on his say-so. Keep in mind also that the ET1 Tribunal claim form allows the employee to invite the ET itself to communicate the subject of alleged protected disclosures to relevant regulators, so the issue is in no sense in your hands alone.

c. An employer’s reporting to the Police in an excess of enthusiasm any conduct by the employee which is obviously not criminal (most bullying, discrimination, harassment or other workplace tinderboxes), or conduct which is criminal but where there are no reasonable grounds to believe the employee in question is guilty of it, risks of being seen as retaliation or even constructive dismissal.

d. If the Police do become involved then their investigation may interfere with or delay that of the employer, especially where there are “tipping off” provisions as in relation to money laundering which may require you to leave the allegedly offending employee in post while further evidence is searched for or obtained . If you need to be rid of the employee quickly, you may therefore be best to do that first before involving the authorities.

2. What is the best view on recording the witness evidence that underpins the information disclosed for accuracy and reliability?

The pros and cons in recording witness evidence are no different in whistleblowing cases than for any other internal process of a grievance and/or disciplinary nature.

Remember also that as the employer you are not responsible for conducting any criminal investigation or necessarily, any investigation at all. You don’t have to prove anything beyond reasonable doubt and the last degree of accuracy in your notes is simply not material to whether the disclosure is protected for statutory purposes or to your obligations not to act detrimentally towards the employee as a result.

Furthermore, any initial nervousness or reluctance around what could be a valuable disclosure to your business may be heightened if the prospective whistle-blower knows that he is being recorded. It will inevitably increase his concern that he is somehow going to be held to account by the employer if the disclosure is wrong or worse still, right – there is no form of disclosure which takes away the fear of retaliation altogether. Your employee may be anxious that the recording will end up in court or in the hands of the person he accused, that you shortly expect him to come to a sticky end behind the bike-sheds so need his evidence down now or that you are holding him to a standard of accuracy and completeness far higher than the reasonable belief which is all that the legislation requires. Recording disclosures is therefore likely to stifle them and so your business may not hear things which in its own best interests it probably should have done.

And as we have said more than once before in the pages of this blog, there is little more damaging to the old trust and confidence than the discovery that you are being taped covertly by your employer, so that is not an ideal option either. If you always tape employee meetings and everyone knows it, then so be it, but otherwise you are probably best off with a pen and a pad and the knowledge that if you don’t get it all down, you can always ask the employee again later.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 173
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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