#72 A Whistle-stop Tour of Whistleblowing

Hello and welcome to the How to HR podcast. I'm your host Shona, founder and director of Lilac HR, where we help equestrian and country businesses to become brilliant employers. Be sure to subscribe so you never miss an episode and let's get cracking. in.

Hello my little cork poppers, how are we? It's been a little while since we've put a podcast episode out. The break was not intentional. Ordinarily I batch my content and I didn't batch my content last month and it came back to bite me on the backside because then I got, you here we are.

So rest assured, we're still here. We're still putting out the content for you. And today I've got quite a juicy HR topic. We're talking about whistleblowing.

Now whistleblowing is possibly one of the most commonly misunderstood areas of HR. And you'll know me, I like to make sure you've got all the information you need to protect your business. So that is what today is all about. Now, strap yourselves in because it is going to be very technical.

Lots of big words, lots of HR jargon but I'm going to try and make it as easy as possible. So let's get stuck in. So what does whistleblowing actually mean? So when an employee or a worker blows the whistle it means they're making something called a protective disclosure.

So it's a little bit different to just making a complaint or raising a grievance. There are three acts within UK law that gives special protections to employees and workers who raise a protected qualifying disclosure of information. And a qualifying disclosure and something that would count as a protected disclosure would be something which is either has or is likely to occur and it's off this list. So it's either something like a criminal offence, either minor or quite serious.

It could be a failure by a person to comply with any legal obligation they are subject to comply by. So it might be something like failure to provide a contract of employment. That would be a breach of a legal obligation. A miscarriage of justice.

A danger to the health or safety of any individual. Damage to the environment or the deliberate concealment about any of the above So whistleblowing is related to very kind of specific things So the difference between a whistleblow and a grievance is that a grievance is generally an employee or a worker who is unhappy about something that has happened specifically to them. It would only become a whistleblow if the thing that had happened to them is their employer had put their health and safety at risk or their employer had failed to comply with a legal obligation or something or that you know maybe their maybe their boss is a criminal who knows that's the difference so that is where what you need to look out for when you receive a complaint you need to have a look and think okay does this complaint meet the criteria of a qualifying disclosure and is therefore a whistleblow because those people who raise those disclosures then have extra protections by law.

So protective disclosures can be made to several different people. It doesn't have to go straight to the employer. So the employer is obviously number one. That's the first place we would like a protective disclosure to go to.

And you should have an internal whistleblowing procedure. But disclosures can also be made to the person who is believed to be legally responsible for the situation, a legal advisor, a government minister or a prescribed person or relevant body like HMRC or another regulator. Like for example if you're in care you might report something into CQC or safeguarding or something like that. But ideally you want to encourage your staff to raise these kinds of complaints to you so that you can deal with them appropriately and the way that you do that is that you have a whistleblowing policy and procedure and you might even want to have something like an anonymous whistleblowing helpline that people can call.

Hopefully if you receive a whistleblowing complaint I would like to think that you've got some epic HR support in place to support you to deal with the issue but the main thing is to follow a set procedure and it's very very similar to the kinds of procedures you would follow if you received a grievance. So the first thing you would need to do is, as we've already kind of discussed, you need to decide whether the complaint is a legitimate whistleblow or if it's a grievance. So you might need to meet with the individual who's raised the complaint first to actually kind of check it out and get a little bit more detail.

The grievances normally are not about those specific topics that we said, you know, criminal offence, legal obligations, it's not normally about something like that Grievances are normally so said this about me and I found it inappropriate or so is bullying me or I don like the new coffee in the kitchen or something like that But a whistleblow might be about an employee who's noticed another employee failing to follow health and safety regulations and putting themselves at risk.

So have a read through and think could this be a whistleblow? Once you know that your complaint is a whistleblow you need to conduct an investigation same as with any other process your investigation process will need to in that process you will need to meet with your whistleblower to gain clarity around the complaint you'll need to understand what are the situations they're referring to are there any sort of specific details specific people who are involved you kind of need to um yeah get a little bit more information from them potentially and then you can go out and conduct more of an investigation and interview witnesses gather relevant documents maybe you need to look at some CCTV footage could be all sorts of things that you need to look at then what you need to do is write a report so your report will either substantiate or refute the whistleblowing allegations which will enable you to respond to your whistleblower and this is very important whether you get a whistleblower or a grievance you should always give a response to the person who has raised the complaint so they know that you've dealt with it.

Now if the outcome of your investigation is that you might be disciplining somebody then obviously you can't give that information to your whistleblower or your grievance raiser but what you can do is say thank you so much for raising your complaint this is what we found. End of discussion. If the allegations in the complaint are substantiated, then the investigation report will form the basis of any sort of subsequent disciplinary action. So if you've got a good enough report that says this is what happened and this person is at fault, you can then use that as your disciplinary investigation for that particular individual.

Now I've made that sound really, really simple because that is the basic bones of how to conduct an investigation into a whistleblow. We know that it doesn't always go that smoothly and we know that it's not always as quick and easy as that either. You might dig up, you might open a can of worms doing these kinds of investigations. you might end up having to interview several people instead of just a couple and you might not ever get to the bottom of the situation it might be a little bit of a he said she said a little bit of hearsay You do unfortunately have occasions where employees raise a whistleblow maliciously.

I've definitely seen it in my career where I've had a whistleblow raised about somebody dealing drugs. And it turned out that it came from the employee's ex-partner who was really upset that they'd broken up. It's not really anything to laugh at, but this is what happens people are people and you have to try when you receive these kinds of complaints you have to try and take some of the emotion out of it and look at what are the facts what factually has happened and that's what your investigation report is trying to do I think the best advice I can give you for your investigation report is to look at it from all angles you don't want to do an investigation setting out to find somebody guilty your the purpose of your investigation is to find out the facts regardless of what outcome that is whether it's good for the company or not whether it's good for the employee or not your duty as an investigating officer is to do just that find out the truth you're on a bit of a mission it's like a little bit of a crusade to the truth.

But really, I mean, the absolute best thing you can do if you're not sure about this stuff, if you don't know what you've got is a whistleblower, if you think, I don't even know where to start with this, or if you want to even talk about putting in place a whistleblowing procedure, just ask. Just ask somebody. Us HR folk know exactly how complex these situations can get. So don't struggle on your own.