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Bullying and Whistleblowing

Far too often is bullying a prevalent concern in the workplace, which places a strain on workplace culture and leaves employees stressed. In the wake of a Cabinet Office investigation into the bullying behaviour of Home Secretary Priti Patel that is set to be concluded this week, the former Home Office permanent secretary Sir Philip Rutnam has recently lodged an employment tribunal claim under the Public Interest Disclosure Act 1998 (PIDA) to argue that he was constructively dismissed for whistleblowing about the Home Secretary’s alleged behaviour.  This case underlines the negative impact a bullying culture can have on an organisation and raises important questions about when a bullying issue crosses over from HR issue into whistleblowing.

Is bullying protected by the whistleblowing protection

The tribunal case will be closely watched by legal commentators as it is expected that Rutnam’s case will consider whether concerns in relation to bullying are covered by the PIDA and the “public interest test”. While it is often assumed that there is a rigid division between whistleblowing concerns and individual HR issues such as bullying, the reality is there is significant overlap between the two. An overly rigid approach to dealing with cases by employers may mean that concerns that should be handled as whistleblowing are incorrectly dealt with as grievances. In short if an employer deals with bullying as purely a complaint between two members of staff they may miss a situation where a damaging culture of bullying exists.

On Protect’s Advice Line 5% of our cases from last year ,137 from a sample of size of 2796, were bullying whistleblowing cases where the concern was based on a culture of bullying, rather than just an isolated incident. This means it may not be effective for employers to just investigate through a grievance or HR mechanisms as it’s a matter that concerns a whole team, department or even a whole workforce, rather than just an individual’s contractual rights.

The role of regulators in a bullying culture

Some regulators such as the Financial Conduct Authority (FCA) have taken an interest in cultural issues like bullying as a way to gauge the overall whistleblowing culture of a bank or insurance firm. In its “Dear CEO Letter” the FCA stated that “that poor culture in organisations…can lead directly to harm to consumers, market participants, employees and markets”. This approach has been adopted by other regulators of professionals where culture and bullying conduct by individuals could impact consumers or an individual’s fitness and practice. Other regulators should be taking a similar approach to the FCA by viewing culture as being integral to internal whistleblowing arrangements in the organisations they regulate and introducing rules or standard for such arrangements. This is Principles 5 of the Protect’s guide for regulators, the Principles for Recommended Practice: Better Regulators”.

Other indicators that make bullying a whistleblowing issue

Other indicators for when concerns about bullying may engage the public interest is if it concerns a large number of employees and/or if it affects their rights in a significant way, such as high numbers of work-related stress. Additionally, a culture of bullying may have a wider impact on the public and to the services that the organisation provides. For instance, in a health setting this may affect the quality of care that is being provided by a team which in turn creates patient safety concerns, which would engage the public interest and should warrant a separate investigation.

For the well-being of staff and for the delivery of services, it is important for employers to understand when cultural issues in the workplace become a whistleblowing matter, and that they can identify this from complaints and grievances made by employees and act appropriately.

What Should Employers should be looking out for?

  • Spot trends from whistleblowing concerns and grievances – This will help you identify, investigate and resolve concerns in an effective way and help you make organisation-wide changes to resolve systemic issues.
  • Consider the impact of bullying issues on service delivery – The impact of workplace bullying may be felt by your organisation, its customers or the general public. Make sure that you ascertain the impact of bullying issues so that you are able to better investigate and resolve them.
  • Create and maintain a healthy speak-up culture – Make sure employees feel empowered to come forward to raise concerns. Clearly set out the difference between whistleblowing and grievances in your whistleblowing policy and make sure that managers are properly supported in triaging difficult issues around bullying culture.

 

Being vigilant to trends or repeat incidents from multiple complaints or grievances e.g. harassment (#MeToo).  This again will alert an employer when a grievance issue has an additional whistleblowing element. Fostering a healthy workplace culture is key to minimising bullying as a concern within itself, as well as the knock-on effects that it may have on wider wrongdoing.

By Burcak Dikman