Royally blowing the whistle: lessons to be learnt for whistleblowers in the workplace
19 January 2023 | Applicable law: England and Wales, US | 6 minutes
As a Brit married to an American and being dual qualified in England and New York, I speak daily with friends, family and clients on each side of the Atlantic. It is fair to say that Harry and Meghan - and events of late - quickly divide opinion. Generally, opinions and level of support seem to depend on which side of the Pond you are speaking to, with those in the US tending to be more sympathetic of the couple.
A lot of the press coverage in recent years has concerned Harry and Meghan’s ‘whistleblowing’, whether it be Meghan raising concerns about toxic workplace culture to the Royal Family’s ‘HR department’, the couple’s Oprah interview which appeared to allege racism (or at least unconscious bias) at the heart of the Royal Family, their Netflix documentary or Harry's recently released autobiography.
As an employment lawyer, I often advise clients on whistleblowing in the workplace in the context of meeting the strict legal test for such whistleblowing to be protected. Although the Sussexes have never claimed to be whistle blowers for these purposes, regardless of which side you take (or indeed neither), their recent press coverage highlights some common themes and lessons that can be learnt when it comes to blowing the whistle in the workplace.
- Don’t expect to be thanked for raising concerns: my clients who take the difficult step of blowing the whistle tend to realise that in doing so they risk alienating themselves from their employer and, in particular, their managers. Attitudes may vary depending on the seriousness and veracity of the points raised. However, Harry and Meghan’s experience serves to put that warning in flashing lights.
- Lessons will likely be learned: virtually every whistleblowing complaint (even those that do not meet the strict legal test for what constitutes whistleblowing) will highlight a lesson that needs to be learnt by that organisation. Although rarely will a whistleblower know that they have effected change as those learning points seldom feature in outcome reports, with organisations too fearful that acknowledging that lessons can be learned is tantamount to admitting that the whistleblower (or someone else) has a claim against the organisation.
- Expect repercussions: sadly, however noble the cause, one must be prepared to face repercussions for blowing the whistle. At a granular level, when one blows the whistle they are necessarily flagging malpractices within an organisation or institution. That is going to upset those accused of that malpractice and, importantly, those who were meant to be policing it. At a big picture level, and this is particularly true in the UK, whistleblowing is too often viewed as synonymous with a lack of loyalty (when often the opposite may be true). Too often a whistleblowing complaint is wrapped up with the departure of the whistleblower from the employer and, in a similar way, there could be issues for Harry and Meghan in their desired reconciliation with the Royal Family.
- Blow the whistle to the right person, through the right channels: one needs to think very carefully about who to blow the whistle to. Blowing the whistle to the very people involved in the malpractice or those who are meant to police it is risky: such whistleblowing is unlikely to effect change and the risk of retaliation is significantly increased. Although by law you aren't restricted to blowing the whistle through certain channels, if an organisation has a whistleblowing policy, you should ideally be following it. Harry and Meghan have been criticised for going to the media with their concerns. For an employee this would never be a route I would recommend as one is unlikely to gain legal protection by blowing the whistle to the press. Whilst in the US one must in some cases go straight to the regulator to gain legal protection from retaliation as a whistleblower, in the UK there is no such requirement (and, indeed, it is often a disadvantage) to blow the whistle only to the regulator.
- Expect to be questioned at length: whilst a whistleblowing complaint should mean the focus is on the organisation, as Harry and Meghan's experiences show, the focus of questioning and cross-examination is often most acutely focussed on the whistleblower themself. As might be expected, there will be an in depth analysis to identify inconsistencies in the whistleblower's story. However, our experience is that there will also be a wider analysis into the whistleblower's conduct more generally, often involving a trawl through the individual's emails and employment history to uncover any evidence of wrongdoing by the individual during their tenure with the organisation. Undermining the whistleblower by questioning their own conduct seems to be viewed by some as an acceptable way to undermine what might be a very legitimate blowing of the whistle.
- How you say it is just as important as what you say: Harry and Meghan have been criticised in the press for the amount of private information (much of it highly critical) about others that has been released in the context of them putting forward their narrative. Recent case law in the UK highlights that how you blow the whistle is crucial. Blowing the whistle in a way which is insensitive or unnecessarily impugns a colleague's competency or integrity may undermine a whistleblower's protection, with an employer able to argue that such action was taken because of the way the individual blew the whistle rather than the whistleblowing itself.
As much as there are differing views regarding Harry and Meghan between the UK and the US, there are different cultural approaches to whistleblowing between the two countries. Indeed, whistleblowing has been protected in the US since the birth of the US. In 1778, just two years after the US's Declaration of Independence, legislation was passed declaring that anyone who served the US had the duty to tell Congress as soon as possible about any misconduct, frauds or misdemeanours committed by others in government service. Today, the US has a number of laws aimed at encouraging and protecting whistleblowers. Indeed, many of those laws offer bounties to those who blow the whistle where such whistleblowing leads to a financial recovery by the government agency investigating the alleged wrongdoing. In the UK however, whistleblower protection was only introduced for employees in 1998 following a series of financial scandals and accidents. Not only are there no formal rewards for employees blowing the whistle in the UK, but employees must blow the whistle in a way that overcomes certain legal hurdles, including blowing the whistle in the public interest (not simply to benefit themselves).
Whether you agree with what Harry and Meghan have to say or not, whistleblowers need to have the space to be heard. Whilst they are not employees, the Sussexes' experiences neatly highlight some of the issues that whistleblowers have to deal with.