The benefits of charities taking a wider view of whistleblowing

Handling disclosures of potential wrongdoing raised by staff or volunteers can be a daunting process for charities and, as highlighted below, just adhering to what the whistleblowing legislation requires may not be sufficient for charities to meet their wider governance obligations.

There are good reasons why charities should be looking at the bigger picture rather than limiting themselves just to the legal minimum under the whistleblowing legislation.

Who is a whistleblower?

It's first worth noting that although the whistleblowing legislation as set out in the Employment Rights Act 1996 (ERA) does not offer legal protection to those whistleblowers who are self-employed, volunteers, job applicants or trustees (although there has been a recent Employment Appeal Tribunal decision which indicated that trustees would be protected), there is of course still significant value in ensuring that you have clear policies and procedures in place which enables all such groups to be able to report their concerns.

If an individual believes that a matter is of significant risk to a charity, they are able to report this directly to the Charity Commission, who will not ignore their concern just because they aren’t protected under the ERA. Therefore, charities should ensure that their whistleblowing policies, and any other procedures for reporting concerns, are not just available to those that fall within the definitions of the ERA as protected whistleblowers. As a charity you want to be able to consider and address any concerns raised internally and take your own view as to whether it falls within the thresholds for reporting to the Charity Commission.

What is a disclosure, and it is protected?

If charities limit their answer to how disclosures are defined under the ERA, then they would only be looking at concerns relating to criminal offences, breaches of legal obligations such as health safety legislation, miscarriages of justice, environmental damage and any attempts to conceal these. But again, taking such a limited view certainly misses what the Charity Commission and the general public may view as a concern.

The Charity Commission's guidance states that individuals should report issues that could seriously harm the people a charity helps, the staff and volunteers of a charity, the services the charity provides, its assets and reputation. Arguably much wider than the definition under the ERA and charities should ensure that they are not limiting the concerns individuals can raise under their whistleblowing policies and procedures.

Having a culture that encourages whistleblowing

If charities want to get ahead of the curve on matters that may be of concern, then you should be seeking to reinforce a culture within your organisation where reporting of concerns is encouraged, and individuals feel confident enough to raise them. Individuals need to know that their concerns will be taken seriously, that there won't be any repercussions for them, and appropriate action will be taken in relation to the matters raised. This may mean that charities need multiple ways in which individuals can raise concerns to ensure they feel comfortable raising them. Certainly, this is in line with the Equality and Human Rights Commission's guidance when dealing with complaints of sexual harassment.

Since 24 October 2024, all employers have a duty to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment and part of that duty is to encourage the reporting of sexual harassment by having effective reporting mechanisms in place which provide different methods of raising a complaint and a clear process to make a complaint. There is a clear overlap between an employer's duty to its staff in the context of sexual harassment and the need to ensure that other concerns can be raised and appropriately dealt with.

In particular the EHRC recommends that wherever possible formal reporting channels should ensure that an individual is able to complain of harassment or victimisation with someone other than the alleged harasser and who is more senior than the alleged harasser. Also, employers should not set a time limit within which complaints must be made and complaints about historical matters should be investigated in line with normal processes.

To support a culture where individuals can feel safe to raise their concerns charities should carefully consider what their policies say about reporting concerns and whether that is discouraging individuals coming forward. Also, when managers receive a concern, they need training and support on how to identify the next steps.

Whistleblowers who request anonymity

Whistleblowers do not have an absolute right to anonymity, and it is not something that any organisation should promise without careful consideration. When a whistleblower requests anonymity, an organisation should explore the reason for the request and consider the perceived need for anonymity against the need to be open and transparent - especially if you are investigating the potential wrongdoing of staff who you will want to know details of the case against them.

The Charity Commission allows individuals to raise concerns with them anonymously but its guidance flags that it may make it more difficult to investigate the concern, be harder to argue that any unfair treatment at work was as a result of blowing the whistle, and that it will be harder for an investigation to be conducted in a way that could protect the individual from being identified.

In many cases any agreement to preserve anonymity presents a practical difficulty, as effectively investigating the disclosure in a manner which is considered "fair" from an employment law perspective can be challenging when the whistleblower requests to remain anonymous (for example, where the nature of the disclosure would inadvertently identify the whistleblower). Further, if following an investigation, it's considered there's a disciplinary case for an employee to answer, the employer is expected to provide the employee with sufficient information about the alleged misconduct to enable them to meaningfully respond to the allegations and challenge the evidence against them.

It is important to carefully consider any request for a whistleblower to remain anonymous and whether limited information can be disclosed which allows you to consider the concern without revealing the individual who raised the concern. Whatever you decide on this issue you should have a paper trail documenting the rationale for disclosing any such information or not. If in doubt, legal advice should be sought.

So what is the take away from this?

As a charity you want to be able to demonstrate that you are aware of matters and have sufficient information to evaluate any risk to your charity and in particular whether there is risk of significant harm which needs to be reported as a serious incident to the Charity Commission. The action point then is to ensure that you have the right practices in place to enable you to effectively listen to the concerns of any individual who comes into contact with your charity and be clear as to how they can raise their concerns.

To help with this, charities need to ensure that they have clear policies in place that all staff and volunteers understand so that matters of concern can be raised and dealt with appropriately. Further, those within your organisation need to be clear on what steps they should take when dealing with a concern. Don’t be too bogged down with whether someone is or is not protected by the whistleblowing legislation, ultimately this is for the Employment Tribunal to determine, you don’t want to limit what concerns you take seriously. A concern is a concern!

Handling whistleblowing disclosures is ultimately complex and sensitive. If you need advice, please contact us on the details below.