Adapting your whistleblowing program to the “new normal”

This blog post is a guest post from Elizabeth Ticehurst, a Principal Lawyer at Activate Workplace Law, and Scott McLintock a partner at CurbyPartners.

Organisations are slowly coming to grips with the new ‘normal’ workplace as we emerge from the stringent lockdown put in force as a result of COVID-19.  However, the employment landscape has changed markedly and quickly.  The pandemic and the national response to control it have resulted in:

• significant job losses: 
• uncertainty around health and safety; and 
• quickly evolving laws and regulations.  

These changes mean that organisations are facing a range of new risks. An important way that organisations can keep their finger on the pulse with emerging risks in their business is to ensure they have an interactive communication platform with staff and suppliers.  A well-run whistleblowing program encourages staff to speak up when they have a question or a concern so that the organisation can respond in a timely manner.  

During a live webinar on Thursday 18^th June, we explored some of the keys risks in the new ‘normal’ work environment and how organisations can adapt their whistleblowing program to ensure that staff feel comfortable making a report and that any reports are well managed and where appropriate, investigated in compliance with relevant laws and company policies.  If you missed this webinar, you can access a recording by clicking on the link below.

Webinar - Adapting your whistleblowing program to the new ‘normal’

Some of the key risks we identified in the Webinar are set out below, along with suggested steps that organisations can take to ensure that their whistleblowing program is relevant for the new employment landscape.

Key Risks:

Set out below is a summary of the key risks that were discussed during the Webinar.  While some of the risks mentioned are not necessarily new risks, COVID-19 and the resulting change to how we work has been a timely reminder for organisations to ensure risk strategies are current and relevant.

Essential workers 

• Essential workers and those who have not been able to work from home have experienced a highly stressful environment with significant uncertainty around health and safety risks. 
• This trend has been reflected in the kind of whistleblowing disclosures being made in recent months, with many relating to health and safety issues in the workplace.

Home based working

• For people working from home, the opportunities for physical and/or face to face workplace conflict have reduced, resulting in fewer disclosures about workplace bullying. 
• However, working from home involves different stresses. A lack of clarity around rules and guidelines has meant that people are unsure what is reasonable in these circumstances and how much flexibility is permitted. 
• An accessible reporting channel is very important in these circumstances, as the opportunity for face to face disclosures is almost non-existent.

Increased Risks

• There is potential for a weakening in controls as businesses recast their work flows resulting in less supervision and/or increased motivation for staff to do the wrong thing when there is job uncertainty. 
• Fraud and corruption risk has increased with the three elements of the fraud triangle (opportunity, motivation and rationalisation) having been impacted as a result of COVID-19. 
• Cybercrime risk has increased as a result of people working from home networks where appropriate security protocols have not been established. 
• There is a risk of covert cultural erosion with a decentralised workforce as it becomes more difficult to identify new and/or modified behaviours that can be detrimental to organisational culture – for example bullying may become less overt (i.e. via social media, chat messages etc.).
• The ability to complete audit and investigation activities will be impacted due to social distancing requirements and staff working remotely. 
• Disclosers may feel more exposed and/or more likely to be subject to retaliation as they are not in the office with their usual support network.  Employees may feel less inclined to come forward and speak up as a result.

Key Considerations:

Areas of a whistleblower program that organisations may want to revisit or re-evaluate in the current environment include:

• Whistleblowing programs may be dual purposed to enable the reporting of health related incidents.
• Importance of accessible communication channels – especially for people working remotely.
• Organisations might find people using the whistle-blowing reporting mechanism in the absence of and in parallel with Employment Assistance Programs. Process and training for this will be important.

• Organisations will need to deliver regular training for their staff on how to make a report and how their report will be handled.  This is not a set and forget proposition.
• Regular training will also be required for those who are responsible for receiving, managing and investigating whistleblower reports.
• Investigation planning (e.g. evidence gathering, witness and respondent interviews) will need to take into consideration social distancing requirements.
• The whistleblower platform may be used as a confidential way for organisations to conduct staff surveys.  This can help staff become familiar with the hotline and builds trust in the system.
• Organisations need to ensure that reports are handled in accordance with their complaint handing procedures (these may need to be reviewed in light of current and future work methods).
• Organisations will need to re-assess their controls in the new ‘normal’ environment to ensure the controls are effective and fit for purpose.

If you are interested in discussing the Webinar in more detail or have particular questions, please reach out to either Elizabeth or Scott: