COVID-19: Whistleblowing and internal investigations

Under UK law, employers are prohibited from retaliating against whistleblowers provided the activities of the latter fall within the scope of a protected disclosure. If a whistleblower makes a protected disclosure and is later dismissed or subjected to a detriment (a word which the courts interpret broadly) by reason of having made that disclosure, then they will have an uncapped claim for compensation against their employer. Whistleblower protection has broad application across the workforce, applying not only to employees but those who fall within the nebulous in-between category of worker, many of whom work in the "gig economy". Moreover, unlike other statutory claims, there is no minimum qualifying period of service required; the protections apply from day one. 

For something to be a protected disclosure capable of whistleblower protection, it must satisfy a multi-staged test:

1. The worker must disclose information (merely gathering evidence or threatening to make a disclosure is not sufficient).
2. The information must relate to one of several prescribed wrongdoings of which the most frequently relied on and relevant are: a criminal offence, a breach of a legal obligation and a danger to the health and safety of an individual.
3. The worker must have a reasonable belief that the information tends to show one of the relevant failures. The subject matter of the disclosure does not, in other words, have to be factually true provided it is made in a good faith.
4. Further, the worker must have a reasonable belief that the disclosure is in the public interest.  The public in this context has been interpreted by the courts broadly. At the very least, the whistleblower must have in mind the interests of others besides his or herself, however, this need not extend to the general public as a whole, or even the entire workforce. It could be the workers at a particular site, or arguably even a subclass of workers.   
5. The disclosure must be made to the employer although, again, the scope of what constitutes the employer in this context has been interpreted widely and is likely to include a disclosure by a junior member of staff to a more senior member of staff, or even a non-executive director. Generally speaking, disclosures to third parties will not qualify for protection although there are exceptions, for example, in the case of regulatory bodies. However, a confidential report to a third party whistleblowing organisation, the police, or the media, is unlikely to benefit from protection.

With no financial cap on compensation in whistleblowing claims nor a requirement for a minimum period of service, it is a potentially powerful claim for workers and a significant area of risk for employers, all the more so in the current climate.

As lockdown eases and more and more workers are instructed to return to work, many will have concerns about the safety of the workplace but may be reticent about raising those concerns for fear of being considered a nuisance, a fear only heightened by the very real prospect of sector-wide redundancies once the furlough scheme is wound down. Accordingly, workers considering making complaints would be well advised to have an eye on the above requirements of a protected disclosure. 

The complaint should wherever possible be made in writing. If the employer has a whistleblowing policy (which many do), this should be followed. If not, the worker may wish to make the complaint via the employer's formal grievance procedure. If accessing such policies is difficult in the current circumstances then the complaint should be made to the worker's line manager or HR representative.  The complaint itself should be focused clearly on the specific relevant failure. Unless it is self-evident from the nature of the complaint, it is sensible to make reference to those who are potentially affected by the relevant failure in order to avoid a future debate about whether the worker had in mind the public interest at the time the disclosure was made. 

From the employer's perspective, great care should be taken when dealing with any complaint that has the characteristics of a protected disclosure. 

With many employers overwhelmed by the unique demands imposed on them by COVID-19, there may be a temptation to deprioritise complaints raised by workers. It is good practice to appoint a particular person to coordinate complaints that are being made and to address them accordingly. As a first step, they should inform the whistleblower that the concerns have been noted and to explain, if they are legitimate, what is being done to rectify those concerns. Any apparent failure in the handling of a process runs the risk of being interpreted by the worker subsequently as a detriment regardless of whether there is any real connection between the two. 

Similarly, a clear paper trail is the best defence against any future accusations of retaliatory treatment.  At a time when many workers will be feeling particularly vulnerable about the security of their jobs, the current climate is ripe for "strategic" whistleblowing. These are complaints raised often in advance of, or during, a redundancy or other HR process whose purpose is to stall the process or set up an argument for increased settlement monies upon termination of employment. These kinds of complaints are often easy to spot but difficult to disprove unless there is clear evidence in support of the decisions made. 

In practice, pursuing a whistleblowing claim in the employment tribunal as an individual is not for the faint-hearted. The process is complicated, expensive and causation is almost never clear cut.  However because the tribunal is by default a no-cost forum, there is rarely any risk to the individual of being ordered to pay the employer's costs and the abolition of tribunal fees has removed the initial administrative costs. These factors, combined with the potential rewards of uncapped damages will often make even a tenuous whistleblowing claim worthwhile alleging, particularly so where future job prospects have been impacted by a COVID-19 related downturn and future losses are thus easier to establish. Employers should keep these longer term risks in mind when dealing with and implementing measures likely to affect whistleblowers. 

Notwithstanding the impact of the pandemic, the fundamentals of instigating an effective and credible internal investigation to get to the bottom of whistleblowing allegations remain unchanged. For example, employers should still seek to move quickly to establish a clear reporting structure within the organisation for the purposes of the investigation, instruct third party advisers where necessary, and urgently consider how to preserve and review the relevant evidence.  

In addition, depending on the conduct, it's still likely that important decisions will need to be taken at an early stage about whether regulatory or insurance reporting obligations may be triggered, or whether the business may itself be exposed to criminal or regulatory liability. In the most serious cases of wrongdoing, the business will have to consider whether to self-report to a law enforcement agency. This decision will always be highly fact specific and often finely balanced with a new factor to be weighed: the pressures facing law enforcement agencies due to the pandemic and how this might impact their investigative capabilities or response to a self-report.   

Further, larger corporates who may have to consider how to manage cross-border investigations at a time of differing restrictions across different offices, will also need to assess the jurisdictional reach of any criminal or regulatory investigation and the possibility of global settlement, taking into account the approaches of the various enforcement authorities in the context of the pandemic.

Although the principles remain the same, the current measures imposed to tackle the pandemic means that there will be important practical differences with any internal investigation that is conducted at this time. For example, the requirement for social distancing inevitably means that any interviews will probably have to be conducted remotely by videoconference, which presents a set of fresh complications for consideration, particularly if witnesses are to be asked to consider documents, or need to communicate with independent legal advisers during any interview. 

In terms of evidence, the process of obtaining documents may actually become easier than in normal times because accessing and where necessary, imaging hard drives in an office environment, is likely to be more straightforward in circumstances in which most people are physically absent. However, in cases in which relevant material is available only on mobile devices in the possession of employees who are currently based at home, then ensuring the preservation of evidence is likely to be more difficult and depending on the technology available may rely on the good faith of the parties involved.

In addition, any organisation will face the usual challenges in ensuring effective team-working while operating remotely, something which may be particularly acute during the intensive initial scoping and evidence collecting phases of an investigation. Further, when lawyers are involved, a client group made up of senior management will typically be identified for the purposes of ensuring that the investigation is protected by legal professional privilege. A strong working relationship will have to be built up, perhaps without the client and lawyers ever meeting face to face, in order to support strategic decision making on how to limit a corporate’s exposure and potentially to prepare to engage with law enforcement authorities.