Raising concerns and whistleblowing: guidance for staff – Law Society Feb24

This practice note explains your professional and regulatory obligations to raise concerns about the actions of your practice.

It may not be easy for individuals to raise concerns about the actions of their practice, but there are professional and regulatory obligations to do so in certain situations.

This practice note also explains the effect of whistleblowing legislation in protecting those who raise concerns.

This practice note is the Law Society’s view of good practice in this area, and is not legal advice. For more information, see the legal status.

Introduction

Regulatory obligations to raise concerns

Requirements in the SRA Standards and Regulations

SRA-regulated individuals must meet the requirements set out in the SRA Code of Conduct for Solicitors, RELs and RFLs (SCCS).

Section 7 sets out the reporting and notification requirements in the SRA Standards and Regulations that apply to you:

“7.4 You respond promptly to the SRA and:

(a) provide full and accurate explanations, information and documents in response to any request or requirement; and

(b) ensure that relevant information which is held by you, or by third parties carrying out functions on your behalf which are critical to the delivery of your legal services, is available for inspection by the SRA.”

“7.6 You notify the SRA promptly if:

(a) you are subject to any criminal charge, conviction or caution, subject to the Rehabilitation of Offenders Act 1974;

(b) a relevant insolvency event occurs in relation to you; or

(i) of any material changes to information previously provided to the SRA, by you or on your behalf, about you or your practice, including any change to information recorded in the register; and

(ii) that information provided to the SRA, by you or on your behalf, about you or your practice is or may be false, misleading, incomplete or inaccurate.”

“7.7 You report promptly to the SRA, or another approved regulator, as appropriate, any facts or matters that you reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you).”

“7.10 If requested to do so by the SRA, you investigate whether there have been any serious breaches that should be reported to the SRA.”

“7.12 Any obligation under this section or otherwise to notify, to provide information to, the SRA will be satisfied if you provide information to your firm’s COLP or COFA as and where appropriate, on the understanding that they will do so.”

Raising concerns about your firm

Reporting to an appropriate person

You should not bury concerns because you feel that reporting them would be disloyal to your colleagues, firm or manager(s).

Your firm should have an open reporting culture that encourages and supports the reporting of concerns about misconduct, regulatory breaches or other malpractice, and a structure in place for the voicing of those concerns.

Your firm’s policies and processes should make it clear how you should raise concerns.

Commonly, it will be by approaching the COLP or COFA, but your firm may instead nominate an external organisation such as a reporting hotline, union official or external auditors.

If you are not aware of your firm’s policy or it does not have one, the COLP or COFA should be your first port of call in most circumstances.

If this is not realistic (for example, your concern is related to the COLP or COFA), reporting your concerns to a managing or senior partner, or even a non-executive board member, may be appropriate.

Concerns should be raised internally first if possible.

In limited circumstances, you may wish to report your concern to an external body such as the SRA. The SRA provides advice on whistleblowing.

Depending on the situation, you may need to think carefully about unintended breaches of regulatory requirements in making a disclosure to an external body.

Impact of whistleblowing legislation

You may wish to consider whether you will be protected by whistleblowing legislation before raising a concern about serious wrongdoing, risk or malpractice.

Public Interest Disclosure Act 1998

The Public Interest Disclosure Act 1998 (PIDA) sets out a framework for public interest whistleblowing.

PIDA protects workers who make certain disclosures of information in the public interest (a “protected disclosure”) and gives them the right not to suffer a detriment or be dismissed as a result.

PIDA is part of employment legislation: specifically, part IVA of the Employment Rights Act 1996.

The Employment Rights Act covers employees such as workers, contractors, trainees, agency staff and home workers, as well as members of limited liability partnerships (LLPs).

It is not clear whether partners of traditional partnerships are covered.

Under PIDA, whistleblowing is the disclosure of information in order for past or current misconduct, or perceived misconduct, to be addressed in relation to any:

criminal offence
failure to comply with any legal obligation
miscarriages of justice
danger to the health and safety of any individual
damage to the environment
attempting to conceal any of the above

The Enterprise and Regulatory Reform Act 2013 included a requirement for whistleblowers to act “in the public interest” but removes the need for the disclosure to be in “good faith”.

This leaves public interest as the primary test for any disclosure made in relation to protections under PIDA.

Protected disclosure and the SRA

To qualify as a protected disclosure, a report must be made directly to your firm, its nominated representative or certain persons as detailed in Schedule 1 of the Public Interest Disclosure (Prescribed Persons) Order 2014.

The SRA is not currently a prescribed person.

Where the SRA is not named in your firm’s policy, you may still be able to report to the regulator.

There are a number of conditions found in section 43G of the Employment Rights Act 1996, which limit the circumstances for reporting to other external persons.

In particular, you must reasonably believe the information disclosed or allegation contained in it is substantially true and that you have already reported or are unable to report to your firm; for example, for fear of evidence being destroyed or being subject to detriment from your firm.

Confidentiality and legal professional privilege

PIDA makes void any provision in an agreement (for example, employment or agency) insofar as it purports to preclude the worker from making a protected disclosure.

However, in relation to concerns that have come about due to work on a client matter, you should be aware that PIDA does not override the legal professional privilege belonging to a third party, and information subject to legal professional privilege cannot form part of a protected disclosure.

This is an area of law on which you may wish to seek legal advice.

It is generally preferable for concerns to be raised openly to enable an organisation to assess the concern and investigate effectively.

It may not be possible for a firm to maintain the anonymity or confidentiality of a whistleblower in circumstances where the firm is required to comply with a competing legal or regulatory obligation.

Checklist

Protect (formerly Public Concern at Work) provides guidance to individuals with whistleblowing concerns.

Protect highlights several points for individuals to keep in mind when whistleblowing:

consider whether your firm has a whistleblowing policy
let the facts speak for themselves – do not make ill-considered allegations
separate personal grievances from matters of wider concern
remember that you’re a witness, and not a complainant – communicate the concern in a professional, calm and factual manner
do not become a private detective
think about the risks and outcomes before you act
remember that you may be mistaken or that there may be an innocent or good explanation
recognise that you may not be thanked
consider whether there are others who are willing to speak up with you
consider seeking advice from another source, such as a union, advisory body, or solicitor

More information

SRA professional ethics helpline

The SRA’s professional ethics helpline for solicitors offers advice on the SRA Standards and Regulations to solicitors, trainees and solicitor apprentices. You can choose to remain anonymous.

Call 0370 606 2577 from 10am to 1pm and 2pm to 4pm, Monday to Friday.

Chat with the team online between 9am and 10am, 1pm and 2pm, and 4pm and 5pm, Monday to Friday (closed on Wednesday).

Find out more about reporting and how to report, including information on whistleblowing to the SRA.

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