As an in-house lawyer, you may come across it in several contexts:
- You may need to consider whistle-blowing policies and arrangements for your organisation
- You may need to consider such policies and arrangements for the legal team itself, and for external law firms and providers working for you
- You may find that a prospective whistle-blower approaches you - for advice, or with a disclosure, and
- You may also find that you need to consider whether – and how – you can blow the whistle yourself.
What is whistle-blowing?
The Public Interest Disclosure Act 1998 amended the Employment Rights Act 1996 to provide protection through the Employment Tribunal for a worker who has been dismissed or suffered a detriment because they have made a protected disclosure which contains information which they reasonably believe is in the public interest. The legislation contains detailed provisions about protected disclosures.
There is extensive official guidance about whistle-blowing, and you may like to refer to the Gov.uk or ACAS links in Further Reading at the end of this Article.
In March 2023, the government launched a review of the whistle-blowing framework indicating that it proposed to gather evidence to consider how the framework has facilitated disclosures, how it has protected workers, whether information about whistle-blowing is available and accessible, what the benefits and impacts have been, and what best practice looked like in responding to disclosures. At the time of preparing this Article, the research had not been concluded.
Whistle-blowing policies for the organisation
Government guidance on policies and a code of practice is available in the publication Whistleblowing - guidance for employers and Code of Practice - see Further Reading at the end of this Article.
It offers practical advice on how to help employers offer an open and transparent working environment, and while it makes clear that there is no legal obligation to have a whistle-blowing policy in place, it is strongly recommended.
The guidance notes that workers are often the first people to witness any wrongdoing and are valuable eyes and ears, that proper policies enhance a culture of openness and support, and that appropriate training, mentoring and advice systems are invaluable in encouraging people to approach the right colleagues in the organisation.
Appropriate policies also allow the organisation to respond quickly and appropriately, are an essential control mechanism and help to allow issues to be resolved without delay.
Advice is also available from the charity Protect - Speak up stop harm - Protect - Speak up stop harm (protect-advice.org.uk) which campaigns for better whistle-blowing arrangements and provides free, confidential advice to anyone in need of advice on blowing the whistle, and also works with organisations to help improve their arrangements to help employees to speak up.
It is recommended that your whistle-blowing policy is widely communicated, and that it makes clear the distinction between an issue being one of whistle-blowing, and one of an employment grievance. Government guidance is clear that a personal grievance is not generally regarded as a protected disclosure.
Whilst there is no such thing as a standard whistle-blowing policy, the Government guidance offers helpful tips about what a policy should contain, starting with an explanation of what whistle-blowing is, a clear explanation of the procedures for handling whistle-blowing, and commitments to train workers, treat disclosures consistently and fairly, and to take all reasonable steps to maintain confidentiality where the law permits.
It is also recommended that the policy indicates what feedback can be expected, emphasises that victimisation of a whistle-blower is unacceptable, and an idea of the time-frame for handling disclosures.
The guidance also includes a checklist for dealing with disclosures, noting that it is good practice to hold a meeting to gather all the information which may be needed and that in more serious cases there may be a need for a formal investigation. That investigation may appropriately involve internal or external auditors or other investigation resources which your organisation may have. It is important that the disclosure is recorded, and that records are also kept of the feedback provided.
When a disclosure is made, it should be treated seriously and consistently. If the disclosure is made confidentially, that must be recorded, and a summary of any meeting must be made and kept, as well as provided to the whistle-blower.
In preparing or reviewing the whistle-blowing policy, it is helpful to consider the Code of Practice set out in the guidance.
Finally, you may well find it helpful to ensure that your organisation has a confidential reporting line – possibly through an external agency - which ensures that anonymity can be maintained while ensuring that all reports are captured and dealt with properly and are reported regularly to your organisation’s Board or Audit Committee.
If your organisation is in the financial services sector or is a premium-listed company in the UK, there are additional obligations – for example, in the case of premium-listed companies to which the UK Corporate Governance Code applies, to include appropriate internal controls which give staff the ability to raise concerns in confidence about wrongdoing.
Whistle-blowing and the legal team
Recent research in an SRA Thematic Review (see Further Reading) has suggested that many in-house teams did not have dedicated policies to control and report legal risks and manage conflicts. It concluded that identifying ethical risks and regulatory challenges could be more difficult for in-house teams under pressure and without suitable infrastructure to keep ethics firmly on the agenda.
It may well be helpful to formalise arrangements by ensuring that in-house teams use one-to-one meetings, team sessions and speak-up mechanisms to encourage legal teams to raise ethical and whistle-blowing issues. Some in-house teams have their own value statements for the legal function to give clear guidance on how members of the in-house team are expected to behave, how they can flag and discuss issues of concern, and where they can go for support.
Being an in-house lawyer can sometimes feel a lonely and exposed role – and that can be so whatever role you play, whether very junior or as General Counsel.
Some teams have used their formal processes as a way to provide formal routes to senior non-executive directors or trustees so that the in-house team can raise concerns outside line management.
The SRA provides professional ethics guidance, and the Bar Council, CILEX and most non-UK legal regulators will provide similar help. The SRA also provides a professional ethics helpline if there is concern about misconduct, risk, improper behaviour by solicitors or issues arising from professional duties.
One thing to bear in mind is that the protection afforded to whistle-blowers does not of itself override legal privilege, and there are clear difficulties if the information on which a potential concern is founded may also be the subject of legal privilege. It may, of course, also bear on the professional duties of the lawyer concerned which may arise as an officer of the Court.
These issues need to be considered carefully in each particular circumstance, but what is clear is that the sooner they are raised and considered the more it is likely to be possible to deal with them appropriately. Your organisation’s in-house processes must encourage – indeed require – members of the legal team to raise issues, to do so at an early stage, and ensure that they are taken seriously.
Further guidance can be found in the SRA | Integrity and ethics | Solicitors Regulation Authority paper, including balancing duties in litigation, reporting obligations and on whistleblowing. The guidance also provides helpful further clarification about disclosing material which may be sensitive, confidential or privileged, and putting in place appropriate protections for those who make reports to the SRA.
What if a whistle-blower approaches you?
As an in-house lawyer, you are likely to deal with an unusually wide range of colleagues within your organisation. You may encounter people from across the spectrum of functional and operational areas, at levels from the very junior to the most senior. As a result, you may well find that you are approached if colleagues have a concern that they may be uncomfortable in raising through their reporting line or are unclear what to do about it.
If your organisation has clear whistle-blowing policies as suggested earlier, they are likely to detail what you should do if approached – either in terms of referring the colleague to a particular reporting route so that the issue can be considered and investigated formally, or if they are not comfortable in so doing, by referring them to a confidential reporting route which many organisations have as part of their policy.
If you work in financial services or a premium listed company, as noted above additional obligations arise and you will want to be familiar with them as part of your role.
What if you may need to whistle-blow yourself?
It is also possible that you may become concerned about things you see in your organisation, and that as a result, you feel you need to whistle-blow yourself. You are, of course, able to use the formal procedure which your organisation may have, as well as seek to raise matters through your own line management and professional channels within your group.
The confluence of your professional obligations, your duties to the court and your client, the complexity of legal privilege and your obligations of confidentiality may appear to present significant issues about whistle-blowing, but they should not stop you from trying to do the right thing.
You may want to consider whether there are professional colleagues you can speak with in confidence in other organisations or elsewhere in the profession, whether you can make a report to your regulator (whether the SRA or sectoral), whether you can speak to an ethical helpline such as that provided by the SRA to help you to frame your approach.
Further reading
Whistle-blowing guidance for employees Whistleblowing for employees: Who to tell and what to expect - GOV.UK (www.gov.uk)
Whistle-blowing guidance for employers Whistleblowing: Guidance for Employers and Code of Practice (publishing.service.gov.uk)
ACAS: Whistleblowing at work The law - Whistleblowing at work - Acas
2023 Review Review of the whistleblowing framework: terms of reference - GOV.UK (www.gov.uk)
SRA Guidance: SRA | Reporting and notification obligations | Solicitors Regulation Authority
SRA Thematic Review SRA | In-house solicitors thematic review | Solicitors Regulation Authority
CLL – Ethics and the in-house lawyer: making ethical calls when advising your organisation