Raising Concerns and Whistleblowing - A Guide for Solicitors

Hello. My name is Alyssa Hodge. And can I welcome you to this data law? Webinar on raising concerns and whistleblowing, A guide for solicitors. Over the course of the next half hour, I'm gonna be dealing with public interest disclosure cases and whistle blowing as it really applies in the solicitor's profession. Are we seeking to interweave at some of the general reporting regulations that exist in the solicitor's code of conduct as well as dealing with wider whistleblowing matters? What am I going to do in terms of structure? What I'm going to start with a sort of overview of the current state of the law and the legal background to the protection that whistleblowers are given in the workplace, generally without particular reference to the solicitor's profession on. Then I'm gonna move on to some regulatory duties that exist on the S. R. A code of conduct following on from that, I'm gonna look at principally at encouraging organizations, solicitors, firms to develop a policy of encouraging a whistle blowing. It's not something that should be swept under the carpet. Everyone should have a policy in place and be aware off the various things that they could do if they consider that some form of malpractice has occurred. I'm not gonna deal briefly with how the solicitor's regulation authority will deal with the report in terms of the practical sense and finally just wrap up at the end with some recent developments in case law, there haven't been many in the last couple of years. The law in relation to whistle blowing now seems to be fairly well set, although there are a couple of authorities about which I think it would be useful for you to be aware. So let's actually start with that legal background. Where did it all begin? Well, it begins back in 1998 with the coming into force off the Public Interest Disclosure Act. That was a piece of legislation that set down for the first time the rules on regulations relating to a whistle blowing. Many of the provisions off the Public Interest Disclosure Act don't exist within that at what they have done. In terms of the employment context is they have been added to the 1996 Employment Rights Act on you'll find the majority of the provisions in Section 43 onwards. Of course, in relation to the Employment Rights Act. There are two different types of claim that can be brought in relation to a public interest in disclosure. Claim that there's obviously suffering a detriment on. There's also being dismissed for having blown the whistle, both of which are unlawful. Under the legislation, there were some amendments made to the provision off the Public Interest Disclosure Act 1998 in the Enterprise and Regulatory Reform Act of 2030 On. In essence, I'll come to what the major change waas in a moment on. Essentially, as I've already said, what the legislation dance is, it provides protection to those people who blow the whistle in relation to their employers. What does? Who is covered? Well, the legislation covers all employees that is to say, those who work under a contract of employment within the terms of the Employment Rights Act. It also covers contractors. It also covers trainees on it covers our agency workers so it covers a broad spectrum. It's not just limited to employees. Other parties are covered by the legislation on indeed or perhaps greater relevance to the solicitor's profession in terms of the way that many firms of solicitors are set up following a decision of the Supreme Court in Clyde and Co. Against Van Winkle Hall. It also covers members off a limited liability partnership. So in other words, if you are a partner in an LLP and you blow the whistle on, you do gain protection from the legislation. So what does the legislation actually protect? Well, it basically, as I've already said, prohibits a dismissal or subjecting someone to a detriment on the grounds that they have made what is called a protected disclosure on before you get to the issue of a disclosure or protected disclosure. Firstly, there needs to be a disclosure that really is the passing on off any information. But in order for it to be a protected disclosure, it, firstly has to be a qualifying disclosure on all of the matters that I'm about to talk about are set out in the Employment Rights Act. What information is being passed on? Well, the information, firstly has to show that, for example, the first item is that a criminal offence has been committed. If it were the case that I would pass on to my employer information that showed that either the employer or someone else had committed a criminal offence, then, in fact, that would that would rank as a qualifying disclosure. In my experience, over the last 20 or so years of dealing with public interest disclosure cases, that one does not feature highly on the list of popular grounds upon which to base. A claim in the employment tribunal, where the majority of cases seem to take place, is on the second limb. It's where someone passes on information that shows that a person has failed or is likely to come likely to fail to comply with a legal obligation. Now that legal obligation, we know from case law that's developed can be both. A statutory obligation as well adds a legal obligation that may arise under a contract off employment. By way of example, the next category of information is that a miscarriage of justice has or is or is likely to occur again. In my experience, this is rare for this particular avenue to feature in a public interest in disclosure case. Another popular one on this relates to health and safety that the health and safety, often individual, has been or is likely to be endangered. You tend to find in practical terms that this arises mawr in the industrial sector rather than the office sector. For example, in the majority of cases I've done that have involved, the health and safety of individuals have been in factory spaces or other industrial units where there is a potentially serious failing on the part of the employer to ensure the health and safety of the workers at that site S O. That is also on important factor. The final category is this. That the environment has been, is being or is likely to be damaged. No, I don't know how you feel about the environment. I've never been a great recycle er for want of a better phrase, although when I did spend some time studying in Germany, I got a taste way back in the 19 nineties off how brutal the Germans are in terms of their motor software and I on recycling. It is a very big thing for them, and obviously things are getting better in in this country. But again, this arises in the industrial sense. If on individual were to learn that the employer was dumping toxins or was allowing dangerous effluvia to escape from a particular factory that was harming the environment, then obviously, that would be covered by that on the final residual category is really this. It's passing on of in the information that tends to show that any of the categories that I have spoken about have bean are being or likely to be deliberately concealed. So, in other words, if an employer or an organization is taking steps to conceal information relating to any of the matters I've spoken about, then obviously that is something that will be covered by the legislation I mentioned a little while ago. The 2000 and 13 Act, which made some amendments to the Public Disclosure Act, the old test for whistleblowing if you go back pre 2000 and 13 waas that the disclosure was only protected if it was made in good faith on there was a large amount of case law that came out in relation to the requirement for good faith. That that issue waas removed by the 2000 and 13 act on the disclosure now is only protected if the whistleblower reasonably believes that it is made in the public interest. So if you have, for example, a disclosure that relates to a failure to comply with a legal obligation that arises under contract. There has to be a public interest element. It can't just be the private sort of a rap, purely private arrangement that is covered here. There needs to be some wider interest in which the public would be interested for the disclosure to become protected. As I said, Iran, once the public interest disclosure has been established by the employee or the worker at the issue there in is whether the employer has subjected them to a detriment detriment in this case is transferrable from other areas effectively means any disadvantage. But of course the employees would still have to satisfy a court or a tribunal off the causal link between the making of the protected disclosure on the detriment that they have suffered. In my experience, not always an easy task in every case, then, obviously there's the concept of dismissal. If the draconian step is taken by an employee to dismiss someone because they have made a a protected disclosure, of course that is one of the categories of automatic unfair dismissal on bond. The employee gains or the work against protection from the Let me Now turn to some of the regulatory duties and the more general reporting duties that are applicable as to solicitors. Details off this you will find in chapter 10 off the S r. A. Code of conduct. Ah, what this particular chapter does it assists the S r. A. Or its purpose, according to the preamble, is to assist the S r A in understanding on identifying risks to clients and the public interest more generally in terms off the regulation off the solicitor's profession on some of the outcomes that are listed in Chapter 10 off the code are of relevance here. Obligation 10.1 states that a solicitor needs to ensure that they comply with their reporting and notification requirements. In the handbook that apply to them, There will be certain things that there are There is a duty, honestly lister to report to the S r. A. Further examples have given in 10.3 that as a solicitor you're under a duty to notify the S r a promptly of any material changes in relevant information. Serious financial difficulty actually taken against you by other regulators serious failures to comply with the principles, rules, outcomes or other requirements of the handbook. If that happens, then you are under a duty to report that to the S R. A at 10.4, which mirrors the provisions in the bar handbook. For persons like myself, you must report to the S R A probably any serious misconduct by personal firm authorised by the S R A or any employee, manager or other member of staff. Of course, when doing so, you have to be mindful of your duty of confidentiality to the client where it arises. 10.7 is an important one in the context off public interest disclosures that you do not attempt to prevent anyone from providing information to the S R. A or indeed the legal ombudsman. There are also a certain indicative behaviors upon which you need to focus the focus. There is a focus on the need to advise the s r a off problems arising within the firm. Financial stability and viability, serious financial difficulty, issues concerning competence and fitness, of the propriety of employees, the owners of the business, the management structure of the firm, all of those factors if they arise, you are under a duty to report. The only direct reference within the code of conduct to whistle blowing in itself is indicated Behavior 10.10. This suggests that the behavior of a compliant firm is toe have a whistle blowing policy, although no further guidance is given in the S. R. A code of conduct as to what that whistle blowing policy should contain fortuitously for you. If you don't already have a whistle blowing policy, I'm gonna move on to that a little bit later in this webinar on Actually give you some of the things that a good whistle blowing policy should contain. I now turn Teoh the issue off, encouraging whistle blowing. As I say, This is not something that firms and organisations should sweep under the carpet. There should be an open and transparent culture in respect off whistle blowing. Although the problems can arise notwithstanding obligation 10.7 to which I have already referred, the very act of whistle blowing in certain circumstances can have dramatic consequences. If it is a serious issue, it could lead to the first lead to the closure of the firm. It could lead to sanctions being taken against one's employer, which will affect the whistle blowers prospects within that firm. It may even lead in certain circumstances if the whistleblower has him or herself been involved in any form of unlawful act toe action being taken against the whistleblower themselves. It can also lead to reputational problems for the whistle blower, the solicitor's profession. The bar we are small industries on words does get out if certain things are done and raised on looking at the longer term, it can obviously also a damage or in danger. The whistleblowers future career prospects whistleblower is therefore tend to be faced with doubts about blowing the whistle. Why? Well, firstly, in my experience, they believe that no one will be interested in what they want to say, that they take the view that well, if if I raise this with someone, nobody's gonna believe may. Secondly, they don't actually know who to tell. Do they go to their line manager? Do they go to their employer? They go to someone senior. Do they go to HR? Do they go to some external body? There's also, in my experience, a certain degree off embarrassment that comes about with the thought of revealing or the passing on of information on. That embarrassment leads to the issue off the worker not actually being believed. There's then, I suppose, what one might call the stigma on that is a sort of cultural objection. If there is a hesitancy on the path of the worker to raise particular information, is it the case that, having done so, they are going to be known within the workplace? As, for want of a better phrase, a Judas like character or a snitch? Therefore, in light of the reservations that many workers or employees have about blowing the whistle because of what might happen to them, what might happen to their employer, the various factors about which I've already discussed? How is it possible that we can actually encourage a whistle blowing culture to ensure that employees and workers are protected on don't suffer any detriment or are dismissed well, and I put This is very a simply is the guys I can you need to have a whistle blowing policy on that whistleblowing policy should be well drafted. For those of you who are solicitors, no doubt you've got solicitors within your firms who perhaps have experience off this, if not, get in touch with some form of human resources. Consultant on Make sure you get a robust and up to date policy. But for those of you, maybe you want to advise or indeed perhaps smaller firms that don't have access Teoh human resources consultants or was blowing policies. The policy, in my view, should contain space. Certain number off minimum requirements firstly on this could be, in the preamble to the policy, a total on unfettered commitment by the firm to treat whistle blowing in an appropriate manner. This can mirror the wording that may exist in your equal opportunities policy, saying that the or as an employee you are committed to treating all employees in accordance with the Equality Act. The same could be said in relation to a whistle blowing. Secondly, the policy is I've already harped on about Should concerns contain some form of encouragement to management and staff to make reports. It's an open and transparent culture that if there are things about which employees are concerned, they should be encouraged to raise those concerns with the appropriate individuals. I would then say that the policy should go on to provide an outline off the kinds of activities to which managers and staff should be alert. This will vary from organisation to organisation. But what I would say is go back to the factors that I spoke about earlier in relation to legal obligations, health and safety, the environment being in danger on make sure that the policy makes it clear that if you suspect that one of these things is happening, you should be encouraged as a worker or an employee to raise it with your employer, Then perhaps the most important part the process there needs to be in place a robust and clear process by which the employees or workers can raise thes issues. It's no use simply stating out these the things you can raise. How is an employer? Do you want it raised? You say you could have this part of your policy that employees need to say that they are raising this particular issue under the whistle blowing policy. Ideally, there should be a single point of contact for all public interest disclosures to be made to within an organisation and then set out the process that will be followed In other words, what are they? What steps are the foot of the firm gonna take to address those concerns? This could be obviously stating that the complaints could be made orally or in writing. The confidentiality can be assured that it will then be investigated that a report will be prey prepared. There will then be a right of appeal. Is there would be in a normal grievance process. All these things need to be in your whistle blowing policy on, but the other thing I'm moving on confidentiality. The other thing that I think is essential is some guidance on some words of wisdom to ensure that employees will not use the process for malicious or other similar purposes. This is a policy that needs to be used primarily for the raising of concerns, serious concerns about the factors I've spoken about. I'm not used for any purpose. What else in terms of policy? Well, quite simply, it should provide staff with guidance on what to do if they encounter reportable issues. It needs to provide that reassurance that they will not be penalized for making a disclosure on ensure that the individual has appropriate support After after a disclosure has been made. Going back to some of the mental processes that I spoke of earlier. You may find that the employee feels in a vulnerable position after having blown the whistle. It's essential that some form of support mechanism is in place in order to ensure that they don't feel marginalized in the workplace again. You need to ensure that line managers are supportive, that they understand what they have to do when perhaps the whistle is blown to them by a member of staff. On that, they themselves realize the importance off the reporting process. Finally, it's obviously going back to the protection. It's ensuring that those who do report are protected from any Reprisals that may come about on that. The individuals are confident themselves that no Reprisals will come about. So that's really in terms of the policy, what it should contain, and that's all very well. But what can one do in practice? Well, okay, you can take the box and say you've got a policy. But a policy on its own, in my view, is not sufficient. You need to ensure that all staff are trained on how to use the policy on again. This could be done by your human resources departments. It could be done by external consultants, depending on the size and nature of your for, because it's all very well having a policy that's fine. But if an individual doesn't know where it is or how to access it, or how to actually follow the steps that are within, then some training has to be provided. This could be done very easily. I'm not talking about a week long training course. It could be done over a lunchtime or in an hour of the end of the day. But just to make sure that all staff are aware again, the training I think is the policy is modified. If it is modified and reviewed on an annual basis, then obviously further training will need to be provided on an as and when basis. I would also encourage you. Teoh. I've mentioned a single point of contact for the receiving of public interest disclosures. It's also important to keep records and to monitor the number off issues that are raised under your whistle blowing policy. So therefore the meticulous keeping of records will be important. Monitor the complaints on the nature of the disclosures that are made on keep records off them on. Of course, in any event, you would need to keep a such records in in order to comply with data protection legislation. Meticulous record keeping. In my experience, if there is subsequently acclaim for a public interest, disclosure, detriment or dismissal, it's far better for the lawyers to actually defend the case if one is acting for the employer. When you say Well, what information have you got about the disclosure being made on a beautiful file appears on your desk, telling you everything you need to know about when the disclosure was made to whom it was made? The actual wording of the disclosure itself? Because it's far easier for the lawyers to then actually analyze the case and see whether the potential is there for a claim. I now turn to what happens if the whistle is blown to the solicitor's regulation authority because obviously the Employment Rights Act encourages whistle blowing in the first instance to the firm to the employer to allow the employer to deal with it. But what if the individual fields that that would have no effect or indeed they take it higher to the solicitor's regulation authority? Well, the guidance on the SRE website is quite clear. It says that it will deal with any report that it receives with sensitivity and tact on if the information is provided to the S r. A on a confidential basis, every effort will be made to ensure that confidentiality is preserved. If if you do want toe, maintain anonymous and preserve the your own identity, it's encouraged that when you do contact the S r A. That you inform them that you wish to remain confidential, the S r A. Will do its best to ensure confidentiality. But of course, as the complaint is investigated or progressed, it may well be that the stage comes where confidentiality will not be breached. But the S r A. May seek to say to you, Look, we're getting to the stage now where we really need to reveal your identity. Are you happy for us to do so? The S r A would never do it without consulting the individual, but it may well be that they will need to do so as a matter of law injured course. The investigation will carry on Andi. Obviously the the individual be notified of the outcome off the investigation on then any findings that the SRE makes in relation to that. Finally, let me turn to recent developments in public interest disclosure law. As I said, it start there are. Most things have been settled on. There was only a couple of cases in recent times about which to tell you. The 1st 1 though, is quite an important one. On this is a court of appeal case from last year 2017 Colchester on Global Against Know Mohammed on its the leading authority now on the new definition off being in the public interest, if you recall earlier, I said that under the old system it was a requirement of good faith that the disclosure was made in good faith that was removed by the 2013 act on. We now have that The test is whether the individual reasonably believes that the disclosure is in the public interest on what the chest is in global case. Doubts is the Court of Appeal gives guidance on determining whether something is in fact, in the public interest just to set the context of the chest. It in global case what you had in that case, waas on allegation that there was a failure to comply with a legal obligation that arose under contract, which on the face of it starts with a sort of fairly private thing. But in chestnuts in global, there were private interests as well as as contended by the employees. Public interests on the Court of Appeal gives guidance to employment tribunals as to the things to look for, to determine whether a disclosure actually falls within the definition off. Being in the public interest on what the Court of Appeal tells us to look at is, firstly, the number of people who are involved, in other words, the number of people whose interest the disclosure served. If it's a failure to comply with a legal obligation arising under a contract of employment Aunt, 200 other workers have the same issue in their contract of employment. That would obviously point to a wider, more public interest in relation to the disclosure. If, on the other hand, only two or three people had river were affected by the interest that is being covered in the legal obligation, then perhaps there may not be, ah, public interest, but it's a matter, obviously, for each individual case. So, firstly, the number of people whose interest the disclosure served. Secondly, the nature of the interest that is affected on the extent to which the interest is affected by the wrongdoing disclosed. How fundamental on interest is it, how fundamental an issue is it in the grand scheme of things, then the nature of the wrongdoing itself? How important is it? How fundamental is it? How dangerous is it? Whatever it might be on? Finally, the identity off the alleged wrongdoing on what the Court of Appeal says you put put, put all these factors together on that should allow the Employment tribunal to determine whether the disclosure that has been made if it takes the boxes of breaching a legal obligation, does it have that public interest? Um, element. I've mentioned breach of legal obligation. The other, more recent case in the Employment Appeal tribunal is either securities LLP and caution over again. This was a public interest disclosure case relating to the failure to comply with a legal obligation on. In that case, the employee alleged that there was a breach of company rules on immoral conduct. The Employment Appeal Tribunal say that that of itself is not enough to amount to a breach of a legal obligation. Company rules and immoral conduct purse ages by themselves are not enough so as to amount to a qualifying disclosure. Well, there we are. I hope that that has been of some use. Andi, Hopefully a to conclusion of this webinar. You'll now be slightly more aware if you were not already off some of your obligations under the SRE reporting requirements, as well as the legislation covering the making of public interest disclosures. I thank you for your time on. I look forward to seeing you all against it.