The Charity Commission recently published its annual report into the whistleblowing disclosures it received between 1 April 2018 and 31 March 2019 and included a significant change to its whistleblowing policy.
Under the relevant legislation for whistleblowing, only those who are classified as “workers” or employees (and some specified categories such as NHS workers and job applicants, agency workers, and those in training amongst others) are entitled to statutory protection if they make a protected disclosure or ‘blow the whistle’. Such individuals can blow the whistle directly to their employer or, if they do not feel able to do this, can make a protected disclosure to a prescribed body, such as the Charity Commission, in accordance with the legislation. Those individuals who are self-employed, contractors (unless they can bring themselves within the definition of “worker” because the contractor is required to perform the work personally), or volunteers do not have the right to make a protected disclosure to a prescribed body and do not benefit from the statutory protection (the right not to be subjected to a detriment) if they do so.
However, in an unexpected move, the Charity Commission has now confirmed that it has changed its whistleblowing policy and will accept and investigate protected disclosures made by volunteers. Such a change is understandable in the charity sector, which is heavily resourced by volunteers and has a higher duty than non-charitable bodies to ensure that all activities are above board as charities tend to be subject to a greater level of scrutiny.
The Charity Commission’s decision does not change the law and does not mean that volunteers who make a protected disclosure to the Charity Commission will be entitled to benefit from the statutory protections. Instead the Charity Commission seems to be making this policy change to help it identify serious concerns that need to be dealt with. Despite this, charities need to be aware of the change in policy, and it is still highly recommended that they do not subject volunteers to a detriment for making a disclosure to the Charity Commission.
Widening the definition is also likely to lead to more disclosures being made to the Charity Commission and subsequently investigated. Charities may, therefore, wish to encourage volunteers to speak freely within their organisation so that any matters can be resolved or investigated before they reach this stage, and may want to adapt their whistleblowing policies in relation to volunteers, whilst recognising that they are not specifically protected under the legislation. It is worth noting that the Charity Commission opened cases to investigate 181 of the 185 disclosures that it received.
The policy change also fits a recent trend that has seen whistleblowing protection seemingly extended beyond the scope of the legislation. All organisations, not just charities, will want to be mindful of this. In a recent case, the Supreme Court decided that Judges benefit from the statutory protections afforded to whistleblowers. The lower courts held that the Judge in question was an office-holder (in theory excluded from protection) rather than a worker but crucially the Supreme Court decided that, in order to uphold the Judge’s rights under the European Convention on Human Rights, the legislation should be interpreted as including judicial office-holders within the definition of worker. Although limited to members of the judiciary for the time being, this case could open the floodgates to claims from other individuals, such as volunteers, trying to assert their right to protection after making a protected disclosure.
Individuals are, rightly, being encouraged to speak up about wrongdoing within organisations these days, and the recent scandals involving some charities has made this all the more important, but it is of course not limited to the charity sector. The increase in disclosures combined with the widening of those who can make disclosures and those who benefit from the statutory protection means it is even more important than ever that organisations review their whistleblowing policies to ensure they are effective and easy for individuals to use. Organisations should also ensure that they take all disclosures seriously and investigate them in the appropriate way. If your organisation needs any assistance with this or would like to review its whistleblowing policies then we would be pleased to help.
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