International Employment Lawyer - 27 May 2021
“Thankfully, most employers will never face allegations of forgery involving the late Princess of Wales. But while the BBC-Bashir case has unique facts, the issues are familiar,” says Raoul Parekh, a partner at GQ|Littler in London. “The whistleblower here says that his career was basically ruined as he found himself sidelined after speaking up, and this points to the main risk for all employers with these cases: shooting the messenger.
“When someone delivers an unwelcome message, it’s easy to understand why the first reaction might be negative. But allowing that negativity to persist creates real legal risk for employers,” he adds. “Instead, they need to establish systems that make sure whistleblowing reports are dealt with impartially and dispassionately. The more significant and wide-ranging the allegations are, the more difficult this can be – and this seems to be one way in which the BBC fell short.”
“The consequences can be severe, and potentially life-threatening for the organisation,” offers Parekh. “The BBC is facing calls for serious governance reform, while private-sector employers can face legal liabilities leading to insolvency. Individual managers can also face personal consequences: 2018’s Osipov case saw the non-executive directors held liable for a CEO’s dismissal and face an award of £1.75m.”
“Anonymous reports might also mean that the employer doesn’t know who has made the reports, so the focus should be on dealing with the issues highlighted, and not who has raised them.”
Jan-Ove Becker, a partner in the Hamburg office of vangard|Littler, explains further: “Besides the strict legal liabilities for employers, there is a very significant risk related to reputational damages. While prosecutors, courts, and especially public opinion often appreciate a professional internal investigation and a company’s will to limit damages resulting from errors, not providing a professional reporting system or not acting in a proper manner after a report will result in much harder consequences.”
“With the new EU directive covering smaller companies, also far more employees will have access to a dedicated reporting system,” says Becker. “After the #MeToo debate we have seen an increasing number of reports about harassment in the workplace than ever before. This was not a result of more incidents, but simply a result of employees now having the courage to say something.”
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