Because of the nature of the work that charities do and the fact that they are usually staffed by dedicated individuals who passionately believe in the Charity’s objectives, they are particularly vulnerable to whistleblowing allegations. That in itself may not necessarily be problematic because a charity obviously wants to be notified when something is going awry within the organisation but the Trustees of Charities need to ensure that they are clear as to how such issues should be dealt with; failing to address and deal with whistleblowing concerns can result in costly claims.
In 2013, 98 whistle-blowing disclosures were made to the Charity Commission and 121 were made in 2012; these figures are only likely to increase with the recent removal of the requirement for a protected disclosure to be made in good faith. The removal of that requirement was balanced by the introduction of a specific need for the disclosure to be in the public interest but it is anticipated that it will be a low threshold which most disclosures in a charity context will be able to satisfy.
In order to make a protected disclosure an employee need only hold a reasonable belief that any one of the following apply.
- a criminal offence has been, is being, or is likely to be committed;
- a person has failed, is failing or is likely to fail to comply with any legal obligation;
- a miscarriage of justice has occurred, is occurring or is likely to occur;
- the health or safety of any individual has been, is being or is likely to be endangered; or
- the environment has been, is being or is likely to be damaged.
As a minimum therefore, we would recommend that charities do the following:
- introduce a whistle-blowing policy. This will encourage internal disclosures rather than references to the Charity Commission. But remember, the best whistle-blowing policy will be useless if an employee exposes a charity in public. Charities must foster a whistle-blower friendly culture if it is to expect its employees to approach it directly;
- nominate an individual who will be the first point of contact for whistle-blowers to make confidential disclosures to;
- train managers in how to identify when the whistle has been blown and what to do next. The definition of a protected disclosure is wide so it may not be immediately obvious that a protected disclosure has been made; and
- document all meetings and correspondence with a whistle-blower. If a whistle-blower is to be dismissed for reasons which are in any way connected to making a protected disclosure it is imperative to take independent advice to ensure the Charity is not being exposed to a claim.
Edwin Coe LLP is a limited liability partnership registered in England and Wales (No. OC326366) and is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office: 2 Stone Buildings, Lincoln's Inn, London WC2A 3TH. "Partner" denotes a member of the LLP or an employee or consultant with the equivalent standing. Our privacy notice which we are obliged to give you under the GDPR is available here.