Whistleblowers: the first line of defence

August 14, 2024

Yolanda Hamblen presents the latest column from Security Buyer’s Association of the Year IFPO, focusing on whistleblowers, and the personal cost of doing the right thing

What is a whistleblower? Does everyone have what it takes to be a whistleblower? Do people who ‘whistleblow’ have a higher level of efficacy and moral standing than others? Are whistleblowers more courageous? Are they more determined to drive justice than others? Common consensus would say, a whistleblower is a person reporting certain types of wrongdoing, someone protected by law and someone who is quite brave. Is that the case? Is the definition of whistleblower fully understood?

Recently it has come to light that whistleblowers may not be as protected as we were initially led to believe. I posted a LinkedIn poll just asking the simple question to my security network, ‘Do you feel whistleblowers are protected enough?’ 95% of the respondents across my engaged network responded ‘No’. I wasn’t surprised the response was ‘No’, but I hadn’t expected the figure to be quite that high. These figures indicate most people don’t feel whistleblowers are safe, and it has led me to conclude confidently that it’s highly likely many would choose not to whistleblow because of the personal risk to themselves.

My research into whistleblowing started with examining specific incidents within the security industry and its clear there is evidence of financial impact. For example, whistleblowing cases at major security firms can lead to millions of pounds in legal fees, fines, and lost contracts. A whistleblower revealing lax security practices can lead to regulatory fines, increased compliance costs, and a loss of clients who seek more secure alternatives.

Within private security companies, whistleblower reports of misconduct, such as human rights violations or corruption, can result in costly litigation, and stringent oversight by regulatory bodies. Disclosures about unlawful surveillance practices or data breaches can lead to severe penalties, including fines and restrictions on operations, as well as a significant drop in customer trust and new business. You don’t have to look very far to see how the impact of paying settlements is costing our industry. The question is, are we learning?

Let’s consider an example; this claimant, documented as a matter of public record was a security officer at Selfridges London. The claimant submitted a grievance against his manager, which he alleged contained a whistleblowing allegation that his manager had been using drugs outside of work.

The respondent subsequently dismissed the claimant, asserting that it was due to the outcome of an investigation. The investigation was initiated within three weeks of the respondent submitting his grievance. The respondent said that the Security Control Room had seen the claimant with his hands in his pocket and away from his designated position, both in violation of directions given to the claimant.

The Claimant argued that the principal reason for his dismissal was the fact that he made a protected disclosure, and therefore his dismissal was an unfair dismissal and in violation of s103A ERA 1996.

The Tribunal found that the allegation that the claimant “failed to follow instructions from Control” was initiated by the security control office independently of the Claimant’s whistleblowing and grievance submission. While the Tribunal acknowledged that the warnings to the claimant, including a final warning and dismissal only weeks after he submitted a complaint which included whistleblowing, may appear to be more than a coincidence, however eventually concluded it was merely a coincidence. The Tribunal accepted that had the Claimant not submitted his grievance, he would still have had issues spotted by the control room and been subsequently disciplined. EJ Emery concluded that the claimant’s dismissal was fair due to ‘repeated acts’ of misconduct.

However, are you thinking the same as me? Was the manager taking drugs outside of work? This allegation had met the criteria for whistleblowing. Were the repeated acts or ‘issues’ that the officer was dismissed for, ‘hands in pockets’ and ‘being away from his designated position’ as stated sufficient for dismissal and not disciplinary action instead? Did this Security Officer receive punitive treatment? Not in the eyes of the court.

Grant Thornton reported ‘in 2018, Barclays were fined US$15million by a US regulator over an attempt by senior staff, including its then Chief Executive, to unmask a whistleblower who had submitted anonymous letters identifying internal concerns. On top of this, the Chief Executive was also personally fined just under £650,000 in the UK by the Financial Conduct Authority (FCA) for their actions. As a result of their deficiency Barclays are now also subject to additional annual reporting requirements in relation to how they handle whistleblowing’. They add, ‘Whilst the legislation is very clear on the matter of whistleblower protections the regulators are imposing fines on non-compliance with same, this does not necessarily protect whistleblowers from any backlash from the public and their peers, which can in some cases be more personally damaging’….