We Need To Talk About The Whistle

Author:Mr Simon Stephen
Profession:Gowling WLG

Whistleblowing continues to be in the news and is very much the focus of many a regulator. It is also being recognised - when done and managed properly - as a necessary part of good corporate governance, risk management and controls. Whilst it may be on the radar for some sectors more than others (for example, financial service firms will be familiar with the ever tightening FCA approach) it's difficult to think of any area or any type of business where whistleblowing isn't relevant. Not being made aware of lurking issues may even sit as a risk in your own risk framework.

Of course, not all people raising issues do so for the right reasons. That is beyond the scope of this blog, although another post on the psychology of whistleblowing goes into more detail.

We often focus on the legal side and what protection is available for whistleblowers: protection from being dismissed or being subjected to a detriment for having made a 'protected disclosure'. UK legislation kicks in after someone has made a protected disclosure and the battleground is then often around whether or not someone actually has that protection. This is of course a very important aspect of whistleblowing for both individuals and businesses.

The UK position does however, to use a cricketing term, tend to throw at the wrong set of stumps.

From a commercial perspective, ideally issues would be spotted, raised and sorted early on. This includes identifying vexatious or malicious motives and managing them whilst also investigating the underlying allegations. After reading a bedtime story to my youngest child a Thomas the Tank Engine analogy came to mind to set this out. Bear with me…

Compare these 4 scenarios:

'Toot toot' says Thomas as he blows his whistle. He needs diverting as his brakes are shot and there's a cow on the line ahead! Thomas is diverted by a signal operator. Thomas doesn't hit the cow. 'Toot toot' says Thomas as he blows his whistle. I'm fed up and tired and want a day off, so am going to grumble about Gordon and how much work he makes me do. The cow is irrelevant (for now) but Thomas annoys everyone. 'Toot toot' says Thomas as he blows his whistle. He needs diverting as his brakes are shot and there's a cow on the line ahead! Thomas is not diverted. The signal operator is annoyed with him for toot tooting before for no apparent reason. Thomas hits the cow. Thomas doesn't blow his whistle. Local people (and Gordon) have complained about his toot tooting and...

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