In our October 2021 blog, we discussed the case of Kong v Gulf International Bank (UK) Limited. The Court of Appeal has now dismissed an appeal of the EAT decision by Ms Kong, agreeing that an employer can take action to dismiss a whistleblower who makes a protected disclosure in an unreasonable manner. Whilst we consider this is an important reminder that whistleblowers’ protection is not absolute, we use this opportunity to remind employers of the issues that should be considered in relation to whistleblowing in the workplace.
Considerations for employers
Establishing the right culture
Employers should aim to promote a safe working environment and should encourage open and transparent reporting of issues. This could be achieved through an anonymous reporting system and by providing support and advice to employees intending to make a protected disclosure. Ultimately, employees are the business’ eyes and ears on the ground and may well be the first to identify issues in the workplace. Employees should therefore be encouraged to come forward and should be reassured that any protected disclosure will not affect their employment.
It is good practice for employers to have a readily available whistleblowing policy accessible by all members of staff. Having clear policies and procedures will demonstrate employers’ commitments to whistleblowing and to listening to the concerns of employees.
Confidentiality
The confidentiality of whistleblowers should be maintained, not only to encourage people to come forward and report concerns, but also to help mitigate the risk of employees claiming they were subject to detriment as a result. Management staff should receive appropriate training on the importance of maintaining confidentiality upon receipt of a protected disclosure.
Meeting with the whistleblower
Once an employer receives a protected disclosure, the employer should aim to meet the whistleblower to gather further information to understand their concerns. Whilst the meeting should be used to gather further information, employers should also seek to manage the expectations of the whistleblower in terms of timescales and possible action/outcomes, in particular the detail of response that they can expect to receive.
Comment
Employers should aim to create an open culture and ensure staff feel comfortable raising whistleblowing concerns. Encouraging staff to make disclosures sends a clear message that the business understands the importance of whistleblowing and will protect staff who raise concerns appropriately. Investigating disclosures thoroughly, resolving issues and ensuring whistleblowers are not subjected to detriment will minimise litigation risk and will encourage staff to report concerns in confidence.
For more information, please contact a member of the Employment Team.
