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As the new EU whistleblowing directive is extended in 2023, UK firms – particularly those that have outlets abroad – will need to keep abreast of developments despite Brexit, argues Jan Stappers

From: Personnel Today
By Jan Stappers LLM, EU Whistleblowing Specialist, NAVEX
September 5, 2022

An effective whistleblowing strategy is key to cultivating a safe, supportive company culture and ultimately, managing risk.

Whistleblowing is the reporting of wrongdoings, illegal activities or unethical behaviour, made in the interest of the public or, in this case, company. However, many employees may not understand the processes, channels or ramifications that can be associated with it. With a new directive currently rolling out across the EU, and UK whistleblowing rules in development, now is the time to make sure that your business understands how best to handle whistleblowing reports and protect those involved while fostering a speak up culture.

Defining workplace whistleblowing

If carried out correctly, whistleblowing claims can help leaders tease out hidden problems and achieve a healthy, productive business culture.

However, it’s important to realise that not all reports can be classified as whistleblowing. Personal grievance issues, such as bullying, harassment, and discrimination, are not technically whistleblowing matters, although “unjust” or “unethical” behaviour is. The key difference is the direction of harm – to others (whistleblowing) or to the self (grievance). This can be a difficult line to tread, and one that needs company-wide clarity to make sure employees are familiar with the correct channels for each type of issue.

Widespread implications of the EU Directive

“UK businesses that also operate in EU countries will need to comply to the rules, making knowledge of the EU Directive essential for those businesses”

On December 17, 2021, a new EU Whistleblower Protection Directive was brought into national law, which businesses that operate in the EU need to comply to. Although the directive does not apply to the UK because of Brexit, there are reasons for UK businesses to take note of the legislation. One being that UK businesses that also operate in EU countries will need to comply to the rules, making knowledge of the Directive essential for those businesses.

In addition, as whistleblowing legislation is being developed in the UK, businesses it is probable that these will be aligned to the EU Directive for easier trading with the UK’s largest trading partner, Europe. For businesses it can be challenging to be compliant with the legislations across countries, but that’s where having a clear whistleblowing strategy can help.

After two years of global uncertainty at the hands of Covid-19, this directive was introduced at a time when businesses were desperate for clear guidance on new, unprecedented workplace scenarios. It includes minimum requirements for HR leaders such as:

  • Safe and accessible reporting channels
  • Ensuring workers know when and where to report wrongdoing
  • Protecting confidentiality of whistleblowers and those involved
  • Promptly acknowledging receipt of reports and providing feedback within seven days
  • Providing an update on the investigation within three months of the initial report
  • Protecting whistleblowers from dismissal, demotion or other forms of workplace retaliation
  • Keeping a record of reports in compliance with GDPR data keeping rules

Since December 2021, all EU companies or public bodies with 250 employees or more have needed to comply with the new directive as it is transposed across Europe.

However, by 2023, this will extend to include any organisation operating in the EU with 50 or more employees. Bringing additional companies into the fold should help to incorporate more people under the same umbrella, creating a strong network of regulated businesses.

Building your whistleblowing system

Familiarising yourself with the whistleblowing legislation in your operating country will help you and your organisation to ensure compliance to the rules. However, the real change comes in implementing, monitoring and measuring the processes and their effectiveness. I’ve laid out four actions that I believe will contribute to a successful whistleblowing strategy:

A lack of reports doesn’t necessarily equate to a healthy workplace

Not receiving a lot of whistleblowing reports? This isn’t always a good thing. Research shows that 85% of EU workers are unlikely to ever report concerns. This could be due to a lack of understanding around the process or a fear of potential consequences.

So, it’s important to ask yourself: are you doing enough to show clarity across the company? What actions can you take to ensure that you are? Workplace issues could lead to an unhealthy company culture where concerns are swept under the rug, not to mention your business will be open to serious sanctions and penalties from regulators. Moreover, organisations which experience a higher number of whistleblowing reports, are 46% less likely to earn negative media stories.

Employees need to buy into the whistleblowing strategy

“Leaders need to inform employees of the identity protection safeguarding procedures and laws to encourage people to step forward”

Trust is a core pillar of the whistleblowing system. Without it, employees who want to speak up may hold back due to concerns of retaliation. In fact, 80% of workers cite fear, over the legal consequences, as the reason holding them back from filing reports. To address these concerns, leaders need to inform employees of the identity protection safeguarding procedures and laws to encourage people to step forward.

Over a third (35%) also believe no action will be taken off the back of their report. Therefore, it is important to keep whistleblowers in the loop at each stage of the reporting process to reassure them that their claims are being taken seriously.

Widen channels to increase reports

This is perhaps a more obvious, but certainly overlooked, way to enhance your whistleblowing system. Every worker will have a preferred route to voice concerns, so by maximising your reporting channels, you will increase the number of ways that employees can get in touch. Web, in-person, mobile and hotlines can all be implemented as successful reporting channels.

Learn how to improve your wider compliance strategy

Interpreting how employees engage with your whistleblowing procedures will help you gain valuable insight into the effectiveness of your wider compliance framework. Indeed, it makes sense that senior management, who embrace whistleblowing to understand the employee mindset, will be better positioned to make company decisions.

So, by incorporating a strong whistleblowing plan into your overall compliance strategy, this helps to align your processes and improve your ability to control risk. With the EU Whistleblowing Protection Directive now in place and whistleblower protection legislation being rolled out across other countries, it is more important than ever for companies to understand whistleblowing in the workplace. It is more than simply understanding and complying with the directive. Your whistleblowing strategy should be effective, with the goal of gaining the trust of employees and creating a supportive workplace culture.