• 31st August 2019

This article was written by Clare McNicholas from the Labour & Employment team at Law Firm Squire Patton Boggs.

Learning point 2: remember that you are in control of the whistleblowing investigation

If a worker raises concerns about something which might represent serious wrongdoing in the workplace, the first step is to get a clear understanding of what they are complaining about.

Individuals should be requested to provide as much information as they can in relation to the disclosure being made. A failure to seek this information may hamper both the effectiveness and the visible good faith of any subsequent investigation. So you ask for the information you would if it were (which it might well be) an ordinary grievance – what do you say has been happening, when and who is involved? What facts or evidence make you think that? However, we would counsel against asking immediately about the “technical” aspects of a protected disclosure – why do you think that is the breach of a legal obligation, why do you think it is a matter of public interest? – because that indicates that you are already thinking defensively about future whistleblowing claims rather than about the subject of the disclosure.

What happens if the employee refuses to provide supporting details of his “whistle-blow”, perhaps because he thinks it will weaken his bargaining stance in any severance negotiations? That does not mean that you should not still investigate as far as you can, but it does mean significant damage to that employee’s position. First, how can you allege your disclosure to be in the public interest if you then withhold the information necessary to remedy it? Second, an instruction from your employer to help it address an alleged legal breach will almost always be a reasonable management instruction, meaning that a refusal to assist is likely to be misconduct.

Note that the whistleblowing legislation does not strictly require that a disclosure is investigated at all – it merely protects the worker against detriment or other retaliation for their disclosure. However, if as an employer you are not seen to treat the disclosure seriously then that will paint a picture of your attitude to either that individual or disclosures generally. That in turn will make it harder to persuade a Tribunal that some later unfavourable treatment of the worker was unrelated to their whistleblowing. Investigating a disclosure properly is therefore optically very important, though it will obviously not protect the employer if it still acts against the worker in retaliation.

As with any other employment-related investigation, employers should ensure that any investigation is carried out fairly and reasonably thoroughly. Keep an open mind and remain objective, even if at first blush you think there is no merit in the concerns. The extent of the investigation will vary depending on the nature of the concerns raised. Sometimes very little investigation is required, but in more serious cases there may be a need for a formal investigation involving possibly a team of investigators or external experts, e.g. where there are serious allegations of fraud or breach of health and safety, etc. It is for the company to decide the most appropriate action to take, bearing in mind always its own assessment of how serious the situation will be if the employee is right.

Remember that workers have no right to any (or any minimum level of) involvement in the investigation nor to dictate any particular remedy or response, whether or not their concerns are found to be genuine. Sometimes whistleblowers think they can influence the action their employer might take or expect to make a judgement on whether their concerns have been resolved satisfactorily, but this is not correct. It is important that expectations are managed throughout the process and it may be sensible for any investigator to make this clear to the individual at the outset, at least in summary.

This is different from a personal grievance, for example, where it is good practice to ask an employee at the beginning what they are seeking to achieve and what they hope to get out the process.

What should you do if an employee says he is going to carry out his own investigations? Employees have no right to make their own enquiries, especially during working hours and/or where that entails their accessing otherwise confidential information. If an employee insists on doing this despite being told not to, it should be made clear that this could constitute misconduct and may warrant the company taking disciplinary action against them, especially if they have been told that the company is already conducting its own investigations.

The employer should keep records of the process it follows, including the complaint raised, the company’s response, any action taken in relation to the matters complained of and the reasons for any action (or inaction).

To view the article where it was originally published click here.