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3rd January 2020

What are Charities’ obligations in whistleblowing cases?

3rd January 2020

What are Charities’ obligations in whistleblowing cases?

Claire Merritt

Posted: 3rd January 2020

T: 023 8048 2112

E: Email Me

Whistleblowing in charities

The scandals last year involving Oxfam raise issues for charities and their duty of care to employees. Employees often raise day to day issues but sometimes those issues can be unexpected, concerning and cause high reputational risk.

What is whistleblowing?

The Employment Rights Act 1996 protects employees who “blow the whistle”. This means that if they raise an issue that is likely to be a breach of their employer’s legal obligations then they are protected from being treated to their detriment or being dismissed as a consequence.

An example of whistleblowing

For example, you’re a charity working with vulnerable adults and the elderly. An employee raised that staff are not maintaining the correct client to employee ratio. In fact, some days one employee will take the day off whilst one employee will be looking after multiple clients. This is concerning in relation to your legal obligations to deliver care but equally worrying for health and safety.

What should you do?

You may feel that this doesn’t necessarily apply to your organisation but there could be similar situations in relation to finances, fundraising from trusts and designated restrictive funding, trustee’s obligations etc.

If this employee raises such an issue, it is incumbent on you to investigate the matter. It is important that you investigate this matter in an even handed way and do not prejudge the outcome.

This is different from the employee raising a grievance about their own issues because whistleblowing means there must be a wider public interest issue. This means that by their nature any whistleblowing will have wider implications for a charity. It is vital that you ensure that any issues are investigated and put right if necessary.

Key crucial mistakes in whistleblowing cases

  1. Failing to keep the employee who has blown the whistle informed. It may be that you cannot disclose the specifics of the allegations but it is best practice to keep them engaged in the process. It is also important to ensure that they feel that they have been listened to and protected by senior management. It is also important that senior management do not act to the employee’s detriment.
  2. Think very carefully if the employee has blown the whistle because performance managing an employee or disciplining them at that point could cause conflict. This doesn’t mean you can’t manage the employee going forward but you need to be thoughtful and mindful about it. You may wish to seek professional advice

3 top tips for whistle-blowers

  1. Consider whether the whistleblowing needs anonymity. Generally it’s better if someone raising the complaint allows their name to be used. It provides context and assistance in the investigation. However if the employee believes that there will be reprisals or is concerned about this, you may wish to consider anonymity. I would suggest that anonymity should always be a last resort.
  2. Documenting the issues. It is really important that any allegations of wrongdoing are carefully documented. Hopefully the employee raising the issues will have put it in writing. If they haven’t put it in writing, I suggest that you ask them to do so or at least take a very detailed note of the issue and ask them to sign a confirmatory copy. It is important to understand what they are alleging and why they are alleging it. It is also important to document your follow up procedures.
  3. Confidentiality. This is important for the employee raising the issue themselves. Some employees can be genuine in their belief about the wrongdoing but mistaken. Therefore it is important that confidentiality is maintained for those that are being investigated. This stops false allegations circulating more widely, but also reassures future whistle-blowers that they will not be widely disclosed.

In summary, the key issues with whistleblowing are to ensure that you take this seriously to ensure that it protects your organisation in the long term by way of reputation. You also protect your employees by adopting a robust process around their disclosure.

If you are a charity that is worried about a potential whistleblowing issue or a person considering whistleblowing and need advice please contact Claire Merritt.

If you need any other legal advice please visit our Charities service page to find out how else we can help you.

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Claire Merritt

Posted: 3rd January 2020

T: 023 8048 2112

E: Email Me