Whistleblowing remains a key topic for global employers. The EU Whistleblowing Directive is now in force and is due to be implemented by EU Member States. The Directive will place further obligations on companies with EU operations to adopt processes compliant with the Directive and local laws, as well as being consistent with any global corporate policies / procedures and US or other third party regimes (where applicable). This means that employers will have to be alive to the varying thresholds in different whistleblowing schemes internationally and have a heightened awareness internally of issues that can amount to whistleblowing under the different regimes. The enhanced legislative framework in the EU also shines a spotlight on whether teams tasked with investigating whistleblowing, Speak Up reports and / or deciding outcomes require specific training and skills, as well as highlighting the circumstances in which independent investigators are useful for these cases.
On top of this development, Safecall commissioned a recent whistleblowing report, as picked up recently by The HR Director, which identified findings that will give all employers, including those based only in the UK, pause for thought. The report suggests relatively low take up and awareness of whistleblowing / Speak Up mechanisms and low levels of proactive encouragement of employees to use these routes. Most concerningly, a good proportion of those surveyed still indicated that employees had little confidence in the anonymity of processes (where they elected for this) and a lack of confidence around non-retaliation.
The report also highlighted a divergence in training standards (only 58% of respondents said that they trained their investigators) and investigation capability within companies for those in charge of these processes. While whistleblowing / Speak Up does not exclusively fall to Human Resources / Employee Relations to manage, those functions do carry a heavy burden on these cases. Reassuringly, only 20% of the HR Directors surveyed in the report were not aware of the EU Directive, suggesting that many are in fact well attuned to developments in this area. As companies go through the process of updating procedures for the EU Directive, it is a good opportunity for a holistic review of end to end whistleblowing / Speak Up reporting, investigations, training and outcome processes.
For those organisations that have achieved a higher level of take up and awareness of whistleblowing / Speak Up mechanisms, they often face a new challenge which is the allocation of sufficient resources and expertise to investigate allegations in a robust, effective and timely manner. Many such organisations are turning to external advisers to provide access to specialist skills, technology and overflow investigative resources.
Hot off the press - future change in the UK might come sooner than we thought after the Government recently launched a review of the current UK whistleblowing framework (press release here). The objective of the review is to assess if the current regime effectively protects those who raise concerns in the workplace. The UK’s whistleblowing laws date back to 1998 and arguably has not kept up to date with the changing nature of industry and the world of work.
The Government’s review will gather evidence from whistleblowers, charities, employers and regulators by asking the following key questions:
- How has the UK whistleblowing framework facilitated disclosures?
- How has the UK whistleblowing framework protected workers?
- Is whistleblowing information available and accessible for workers, employers, prescribed persons and others?
- What have been the wider benefits and impacts of the UK whistleblowing framework, on employers, prescribed persons and others?
- What does best practice look like in responding to disclosures?
As part of Brexit, the UK committed to retaining a level playing field with the EU as it relates to social and employment standards - so this review will be key in determining whether or not the Government will take steps to align the UK regime with the principles of the EU Whistleblowing Directive in certain key areas. The terms of reference can be viewed online here and the research is expected to conclude in Autumn 2023.
Please contact Julia Gorham, Partner or Marian Bloodworth, Partner in Deloitte Legal’s Employment Law team, to discuss your current arrangements and how we can help.
Deloitte operates Global Conduct Watch, a whistleblowing / Speak Up platform, as well as providing Legal and Forensics services to firms. We can assist by conducting investigations, managing end to end processes for investigations and providing advice and legal support on related claims and litigation. To access the content from our recent Deloitte webinar on the new EU Directive, please click the link Conduct Watch | Deloitte.
Please contact Jules Colborne-Baber, Partner or Matt Boddy, Director in Forensics for more information.
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