Following the Charity Commission’s recent high profile investigations, the focus has moved away from “how did this happen” to “how do we stop it happening again”? One key preventative measure is supporting and encouraging whistleblowing. In this article we look at the legal definition of whistleblowing, who has protection, and what protection they have.
The National Council for Voluntary Organisation’s Charity Ethical Principles contain the following guidance:
Charities should create a culture and space where donors and supporters, as well as the wider public, can see and understand how they work, how they deal with problems when they arise and how they spend their funds … this means charities should … publish … their whistleblowing policy.
It’s all very well having a policy in place, but charities need to understand what whistleblowing is, who is protected, and what protection they have. Charities also need to consider their attitude to whistleblowing, and how complaints and concerns will be dealt with.
- What is whistleblowing?
The legal definition of whistleblowing is:
- A disclosure of information;
- Which in the reasonable belief of the worker is made in the public interest; and
- Tends to show:
- A criminal offence has been committed, is being committed, or is likely to be committed;
- A person has failed, is failing, or is likely to fail to comply with any legal obligation;
- That a miscarriage of justice has occurred, is occurring, or is likely to occur;
- That the health or safety of any individual has been, is being, or is likely to be endangered;
- That the environment has been, is being, or is likely to be damaged; or
- That information tending to show any matter falling with any one of the above paragraphs has been, or is likely to be deliberately concealed.
In practice, it is most common to see reports of criminal activity, breach of legal obligation (including breach of charity law), and health and safety.
A disclosure can be made to various people, including the employer, the Charity Commission, other regulators and potentially the press.
It goes without saying that charities should handle any complaints seriously, whether or not they technically meet the legal definition of whistleblowing. In our view, if a matter is brought to a charity’s attention, it is not acceptable to seek to justify inaction on the basis that the complaint did not technically amount to whistleblowing.
- Who has protection?
The legislation only applies to employees and workers. Therefore, all other individuals do not have legislative protection. However, that is not to say they cannot whistleblow. The Charity Commission supports disclosures of information from all sources, and specifically refer to volunteers on the whistleblowing page of its website. Therefore, complaints from anyone with whom the charity comes into contact with should be taken seriously and acted upon.
- What protection is available to employees and workers?
If they can establish they are a whistleblower, then an employee or worker is protected from suffering detriment on the ground that they are a whistleblower, and from being dismissed if the reason or principle reason is their whistleblowing.
Detriment can be any action or inaction that is detrimental and can include compensation for financial losses and injury to feelings. In a case of dismissal, an employee does not need 2 years’ service before bringing a claim, and there is no cap on the compensation they can recover.
Therefore, charities need to be very careful in handling complaints that may amount to whistleblowing, and in particular before considering disciplinary proceedings that may result in dismissal.
- What to do if you receive a whistleblowing complaint?
The first step is to determine whether or not the complaint is whistleblowing. As a general rule of thumb, if it relates to the person complaining then it’s more likely to be a grievance; if it relates to something or someone other than the person complaining then it’s likely to be whistleblowing. Note however that a complaint can be both a grievance and whistleblowing.
You will need to investigate. Ordinarily this will involve speaking to the whistleblower to obtain further information and evidence. You may then need to speak to other individuals involved, and consider relevant paperwork and computer records. You will need to establish whether the complaint has merit and, if so, what remedial action is necessary.
You will need to consider whether a Serious Incident Report should be made to the Charity Commission. The timing of the report will depend on the circumstances, but could be when the complaint is received, or at the end of the investigation.
You will need to consider what information should be shared with the whistleblower at the end of the investigation. It is important that the individual understands that their complaint has been taken seriously, and that action has been taken. 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?
You may find that a whistleblower seeks to keep their identity a secret. Wherever possible, you should try to encourage an individual to share their identity in order that you can fully understand and investigate their complaint. However, if they refuse to do so, you will still need to investigate based on the information you have. You will have to consider what conclusion you can report to the whistleblower.
It is not uncommon for individuals to ask you to keep their identity a secret, for fear of repercussions. This is particularly prevalent 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 of course should seek to respect the individual’s wishes. In this regard, be mindful of the whistleblower’s protection from suffering detriment, which as an employer you 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 confidentiality agreement to prevent whistleblowing.
If an individual discloses confidential information to a third party, for example, the Charity Commission, 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, which for most charities is likely to be a nominated trustee. You may want to consider having a dedicated email address for whistleblowing complaints.
You should make it clear how an individual raises a complaint, and the process to be adopted once a complaint is received. You should also make clear whether the outcome of the investigation will be shared with the whistleblower, and what happens if the individual is not satisfied with the outcome.
Finally, you should make it clear how a whistleblower will be supported, 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 are interested in exploring whistleblowing in more detail, would like a whistleblowing policy, or would like training for senior managers and trustees, please contact Harriet Broughton.