Whistleblowing: the pressure mounts: Practical tips

Increasing pressure:

• Expectations of companies on how to handle whistleblowing are increasing
• More investigations will be triggered by public whistleblowing
• New statutory requirements in the regulated sector, but indirect pressure elsewhere
• All companies should consider their policies and procedures for whistleblowers

The increasing pressure suggests that employers should consider:

• introducing a disclosure / whistleblowing procedure for employees to disclose information which would amount to a protected disclosure (not least to reduce the risk of an employee making a protected disclosure without it coming to the attention of a person with responsibility to act on the disclosure)
• introducing a whistleblowing hotline (although international employers should ensure that they take into account local restrictions - further details are available here)  
• setting out a process for investigating disclosures made by whistleblowers, including suitable timeframes and steps to keep the whistleblower informed and protected
• publicising the policy internally, making clear the protections afforded to whistleblowers making protected disclosures
• reviewing contractual confidentiality clauses to ensure that they do not preclude a worker from making a protected disclosure
• taking care to consider how national (or, in the future, EU) trade secrets law interacts with protections for whistleblowers
• reviewing redundancy selection criteria to ensure that they do not include, for example, a criterion such as "commitment to the company" which could be influenced by subjective evaluation based on an employee having made a protected disclosure
• reviewing grievance procedures to make sure that it is clear when a matter should be dealt with under the grievance procedure and when it should be dealt with under the whistleblowing procedure
• considering how to capture (and act on) potential disclosures if there is no whistleblowing procedure
• management training to ensure that managers to whom disclosures may be made are aware of the protection available to workers under relevant legislation.

In the financial services sector, those affected by the new senior managers and certification regime should:

• identify a senior manager to take individual responsibility for the whistleblowing policy and procedure and report regularly to the board on its implementation and effectiveness, and 
• review their policies to ensure that they comply with the new rules that came into force in September 2016 (see here).