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What to do if there’s a breach of whistleblower confidentiality

Confidentiality - a guide for employers.. blurry photo of people in a plublic place

Classified, private, hush-hush. Whether it’s a surprise birthday party, a family announcement or details of a promotion, there are times when we’ve all had to keep something under-wraps to ensure we don’t spill the beans or drop someone in it when things are meant to be held back.

When it comes to whistleblowing the same applies, and keeping information confidential is essential for all employers to get to grips with. In fact, it’s become more and more an expectation on organisations whether through regulation in the financial sector, water companies or throughout Europe via the EU Directive on Whistleblowing.

This makes a lot of sense, in many situations, as it’s the most effective way for employers to protect staff who speak up. In fact, in our experience many whistleblowers assume that when they raise concerns with their employer it will all be kept confidential.

Sadly, a whistleblower’s identity can be revealed, or their confidentiality breached, in a number of ways – and is more commonplace than it should be. From a manager inappropriately disclosing a whistleblower’s name or the whistleblower themselves sharing details of their concerns with a colleague – breaches do happen and can have serious consequences.

A breach of confidentiality can put pressure on the whistleblower and lead to lower levels of trust in an employer’s whistleblowing systems. Being revealed as the whistleblower within an organisation can expose an individual to detrimental behaviour from colleagues and those in the firing line. Our Confidentiality Guide to Whistleblowing demonstrates this with YouGov research revealing a third of UK workers (32%) name a fear of reprisals as the key barrier preventing them from blowing the whistle.

Though prevention is key, breaches can, and probably will, happen and so knowing how to plan for and respond is critical.

Here are our top five tips for employers:

  1. Risk assess before the breach occurs

Sometimes planning for the worst can be the best form of defence. Risk assessments are vital in preparing for the risk of victimisation and part of this process can also help anticipate where the breach is most likely to come from.

  1. Move quickly to understand where the breach has come from

Ensure you can establish what has happened fast and demonstrate to the whistleblower that issues will be addressed. It’s also important to show that confidentiality is taken seriously to those whose conduct is also under investigation.

  1. Discipline those responsible for the breach

Attempts to uncover a whistleblower’s identity can be hugely damaging and stressful to the individual so it needs to be acted on quickly, this should include disciplinary measures where appropriate. Bear in mind that the breach may come from the whistleblower themselves who may have shared their identity with colleagues, or those investigating the concerns, etc.  Disciplinary action should only be followed when the whistleblower has breached the confidentiality of others e.g. those under potential investigation.

  1. If the whistleblower breaches confidentiality to an external body

Sometimes a whistleblower will raise their concerns with a regulator, an MP or even the media. While organisations may fear these breaches, the legal protection for whistleblowers allows for this disclosure in certain circumstances. Also, legal agreements i.e., confidentiality clauses in contracts of employment cannot prevent these disclosures. An organisation should reflect on why a member of staff raised concerns externally rather than disciplining the whistleblower.

  1. Learn from the breach

Organisations need to carry out a full review of their process following any breaches of confidentiality. This should be done after their whistleblowing investigation, and form part of an annual review process conducted by the board or via a recommended benchmarking exercise.

Protect has produced a full and comprehensive Confidentiality Guide to Whistleblowing covering all aspects of the process. Written in collaboration with trade unions, lawyers, whistleblowers and employers, this interactive handbook covers best practice and includes a range of practical resources. An indispensable guide for anyone overseeing or managing their organisation’s whistleblowing systems.

Andrew Pepper-Parsons
Andrew Pepper-Parsons, Director of Policy & Communications

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