Whistleblowing: why raising concerns is critical

Freedom of speech, person is censored.

Whistleblowing in the UK construction industry is a critical aspect of the professional responsibility that engineers and technicians must understand and navigate, says James Cash.

Being a vigilant and responsible building professional involves raising concerns about dangers, risks, malpractices or wrongdoings that impact others, whether within the workplace or externally.

Construction is complex and processes are fragmented, involving a range of disparate and specialist skills. This can leave projects vulnerable to a host of risks that includes both negligence and active wrongdoing. For example, modern slavery is a major area of concern in the construction industry as the second most reported industry for cases of labour exploitation, according to antislavery campaign group UnSeen. Modern slavery can happen in any industry where labourers and subcontractors are common. Theft and corruption are another example, as the highly complicated supply chains that the construction industry requires can make it easier for procurement fraud, while theft of materials is common.

However, it is in the realm of safety during construction and the lifecycle of the building where engineering and construction professionals are increasingly urged to direct their attention.

The Grenfell Tower fire and the litany of professional shortcomings that led to catastrophic loss of life was followed by the Hackitt review. This found systemic failures and shortcomings in the regulatory framework, construction practices and fire safety measures that contributed to the disaster, and has since informed the discussion on safety and whistleblowing practice.

Professional competency

CABE sets out in its Competency Frameworks 2023 – for professionals in this field where risk management is paramount – that identifying inadequate risk quantification and management is particularly crucial.

Building engineers must demonstrate a comprehensive understanding of health and safety legislation pertinent to their work, encompassing onsite operations and the entire building lifecycle, including occupation. This involves possessing detailed knowledge of their individual roles and responsibilities regarding health, safety and welfare matters. Effective communication with stakeholders outside the project team is essential, as is the ability to promptly address reported risks or concerns.

Furthermore, building engineers are tasked with managing systems that meet health, safety and welfare requirements relevant to their work. This includes the development and implementation of hazard identification and risk management systems, as well as their continuous evaluation and improvement. In the event of incidents impacting fire safety, structural integrity or public health and safety, engineers must promptly respond, recognising the need for specialist advice or execution of work.

Professionals must work in accordance with relevant health and safety legislation and best practices, such as the Health and Safety at Work Act 1974, Construction (Design and Management) Regulations (CDM), OHSAS 18001:2007 and company safety policies. This entails conducting safety audits, risk assessments and hazard minimisation activities. Additionally, professionals are responsible for delivering health and safety briefings and inductions, as well as ensuring compliance with CDM regulations and other applicable legislation throughout the project lifecycle.

Part of maintaining a strong safety culture involves anticipating, identifying and addressing unsafe or inappropriate behaviours. Engineers should be proactive in challenging such behaviours and escalating concerns through appropriate reporting or whistleblowing mechanisms. Furthermore, undertaking formal health and safety training is imperative, as is taking personal responsibility for adherence to health, safety and welfare obligations.

When faced with such concerns, individuals have ethical, professional and legal obligations. Ethically, engineers are bound to act upon encountering significant risks or wrongdoing that adversely affect others. Professionally, adherence to their institution’s code of conduct is imperative. Legally, compliance with the laws of the country of operation is mandatory, with potential disciplinary consequences for failing in professional duties. Legislation surrounding whistleblowing varies across jurisdictions, necessitating awareness of local laws and cultural contexts. While English law applies to employment contracts made in England, engineers working internationally must also consider local regulations.

Freedom of speech

Changing the culture

Whistleblowing in the UK construction industry has traditionally been inhibited by a complex interplay of factors, ranging from cultural norms to systemic challenges within the sector itself. One significant barrier is the prevailing culture of silence. Construction sites often operate within tight-knit communities where loyalty to colleagues and employers is highly valued. This sense of camaraderie can discourage individuals from speaking out against wrongdoing.

Amanda Stubbs, Partner at Trowers & Hamlins who specialises in real estate and environment health, says: “The construction industry is typically a macho industry, where you see a lot of health and safety risks and a lot of people taking risks. Though some of the bigger companies are trying to bake in a culture of safety, they’re coming from a fairly low base. They’ve got much to do to create a genuinely safe environment, more like the environment that you’ve seen in the offshore industry or chemical industry where major accidents have promoted a better culture.”

The industry has been behind the curve in terms of safety, but also in terms of how whistleblowing is used and manifests itself in construction. Moreover, the hierarchical nature of the industry poses challenges for those lower down the chain to report concerns. Construction projects typically involve numerous subcontractors and layers of management, making it difficult for frontline workers to raise issues effectively. The fear of victimisation or blacklisting within the tight-knit network of contractors further deters individuals from whistleblowing.

Additionally, the transient nature of employment in construction adds another layer of complexity. Workers often move between projects and companies, making it harder to establish trust and rapport with employers or colleagues. This lack of stability can discourage individuals from speaking up, fearing repercussions that may follow them to future job opportunities.

Imogen Reseigh, Managing Associate at Trowers & Hamlins and a specialist in employment law, says: “Construction brings different types of workers and professionals together. Workplaces are often made up of not just employees and workers, but also consultants and agency workers. A lot of work is site-based so oversight and supervision can be challenging. All of that combined can result in a reluctance to raise concerns, but also individuals not necessarily knowing who to raise concerns to. That’s why it is important for employers in the construction sector to have whistleblowing processes in place.“


Employers’ best practice

Whistleblowing policies are not mandatory but best practice to have, in order to create a culture where people feel able to raise concerns and know how to do so. Many construction firms lack clear policies or procedures for reporting concerns, leaving employees unsure of what to do when they witness wrongdoing. Without adequate support or protection, individuals may feel powerless to challenge unethical behaviour, further perpetuating a culture of silence.

Furthermore, the pervasive focus on project deadlines and profitability often takes precedence over ethical considerations. In an industry where time and cost pressures are constant, whistleblowing can be perceived as a hindrance to progress, leading to a reluctance to address underlying issues.

Pepper-Parsons notes: “Employers must go beyond merely having a policy in place; it’s about active implementation and engagement with staff. While crafting a policy is relatively straightforward, ensuring its efficacy requires careful attention to several key aspects.”

Firstly, the policy must be comprehensive, providing clear routes for raising concerns outside of line management, along with assurances regarding confidentiality and protection against victimisation. It should outline the investigative process, particularly in larger organisations where dedicated investigation teams may be involved, all communicated in plain and accessible language to cater to varying levels of education across the workforce.

The most critical aspect lies in how employers engage with their staff regarding the policy. Outreach efforts, such as surveys, focus groups and regular training sessions, are essential to ensure that employees are not only aware of the policy, but also understand how to utilise it effectively.

This necessitates training not only for managers and designated contacts on how to respond to whistleblowers, but also for all staff on how to raise concerns in a manner that facilitates effective investigation.

Francesca West, Managing Partner at whistleblowing specialist law firm James and West, says: “A whistleblowing programme is a fantastic communication tool. It is a brilliant way to know about your problems as early as possible.”

Establishing reliable channels with accessible personnel encourages employees to address issues directly with their managers. This fosters a culture of openness and prompt problem solving.

 West says: “A robust whistleblowing program signals an organisation’s commitment to addressing challenges swiftly, promoting transparency from top leadership down. Ultimately, the success of such programs hinges on employer diligence in ensuring staff awareness and proactive problem resolution, preventing situations where employees only learn about their rights after encountering major issues.”

For organisations lacking clear ethical codes or whistleblowing policies, individuals in positions of responsibility should take steps to implement them.

In the UK, guidance is available from sources such as the British Standards Institute’s Code of Practice PAS 1998:2008, the UK Whistleblowing Commission Report and the Department for Business, Innovation and Skills’ Whistleblowing Guidance for Employers.


How to be a responsible whistleblower

Andrew Pepper-Parsons is Director of Policy and Communications at Protect (formerly Public Concern At Work), an organisation that aims to support whistleblowers and ensure the whistleblowing process works for organisations and society. He says: “The act of whistleblowing involves bringing concerns to someone in authority, akin to being a witness at a crime scene reporting to the police.”

Ideally, raising concerns should initially involve discussions with immediate employers or managers. “When an individual spots an issue they need to raise as a whistleblower, it’s crucial to recognise the distinction between personal employment issues and matters that have wider implications, particularly concerning the rights or safety of others. This could involve safety practices endangering fellow workers or suspicions of fraud by a superior. In such cases, utilising the whistleblower process, distinct from HR procedures, becomes essential.”

Most employers have established whistleblower policies, offering channels to voice concerns outside of direct line management. Pepper-Parsons notes that around 70-80% of individuals who seek advice from Protect on whistleblowing have already raised their concerns internally, often with their line manager. However, external routes within the organisation should be available for cases where there’s a poor relationship with management or if the concern involves management itself. These routes, outlined in the whistleblowing policy, should provide additional avenues for reporting.

Seeking advice is crucial, especially for technical concerns related to engineering principles, which can be obtained from professional engineering institutions. Legal or HR related issues require appropriate expertise from organisations, industry regulators or legal assistance programs.

Early advice, sought through avenues such as trade unions or free advice lines, proves highly effective, especially for those uncertain about the nature of the issue or the whistleblowing process. It’s worth noting that verbal concerns hold as much weight as written ones, though creating an audit trail through written communication is advisable. This ensures accountability and offers protection against potential victimisation.

However, Pepper-Parsons says: “It’s crucial to maintain a distinction between reporting suspicions and carrying out investigations. Legal protections are in place to safeguard whistleblowers, and policies should encourage individuals to come forward based on suspicion rather than demanding concrete evidence. This approach not only fosters a culture of transparency, but also mitigates risks associated with premature investigations, such as compromising ongoing probes or breaching privacy protocols.”

The foremost concern for a whistleblower revolves around confidentiality. “Distinguishing between confidentiality, where one’s identity is protected within the organisation, and anonymity, where even the organisation is unaware of the whistleblower’s identity, is crucial.

“Many organisations provide reporting lines through third parties to ensure anonymity, leveraging technology to facilitate effective communication with the employer. While whistleblower policies often address confidentiality measures, it’s imperative to acknowledge the potential for breaches, especially in small teams where maintaining anonymity becomes challenging. Transparency regarding the limits of confidentiality and the possibility of legal obligations to disclose information, such as reporting to law enforcement, is essential.”

Additionally, fear of retaliation looms large for whistleblowers. If confidentiality cannot be guaranteed or if there’s a genuine apprehension of victimisation, raising concerns directly with the employer is advisable. Pepper-Parsons says: “Whistleblowers can also safeguard themselves by maintaining detailed records of any instances of victimisation and promptly reporting them to the employer. By fostering open communication and providing avenues for protection, organisations can mitigate the concerns of whistleblowers, facilitating a safer and more transparent work environment.”

Navigating whistleblowing in the UK construction industry demands a comprehensive understanding of ethical, professional and legal responsibilities, alongside familiarity with relevant legislation and access to appropriate guidance and support mechanisms.


Employers’ best practice

Whistleblowing policies are not mandatory but best practice to have, in order to create a culture where people feel able to raise concerns and know how to do so. Many construction firms lack clear policies or procedures for reporting concerns, leaving employees unsure of what to do when they witness wrongdoing. Without adequate support or protection, individuals may feel powerless to challenge unethical behaviour, further perpetuating a culture of silence.

Furthermore, the pervasive focus on project deadlines and profitability often takes precedence over ethical considerations. In an industry where time and cost pressures are constant, whistleblowing can be perceived as a hindrance to progress, leading to a reluctance to address underlying issues.

Pepper-Parsons notes: “Employers must go beyond merely having a policy in place; it’s about active implementation and engagement with staff. While crafting a policy is relatively straightforward, ensuring its efficacy requires careful attention to several key aspects.”

Firstly, the policy must be comprehensive, providing clear routes for raising concerns outside of line management, along with assurances regarding confidentiality and protection against victimisation. It should outline the investigative process, particularly in larger organisations where dedicated investigation teams may be involved, all communicated in plain and accessible language to cater to varying levels of education across the workforce.

The most critical aspect lies in how employers engage with their staff regarding the policy. Outreach efforts, such as surveys, focus groups and regular training sessions, are essential to ensure that employees are not only aware of the policy, but also understand how to utilise it effectively.

This necessitates training not only for managers and designated contacts on how to respond to whistleblowers, but also for all staff on how to raise concerns in a manner that facilitates effective investigation.

Francesca West, Managing Partner at whistleblowing specialist law firm James and West, says: “A whistleblowing programme is a fantastic communication tool. It is a brilliant way to know about your problems as early as possible.”

Establishing reliable channels with accessible personnel encourages employees to address issues directly with their managers. This fosters a culture of openness and prompt problem solving.

West says: “A robust whistleblowing program signals an organisation’s commitment to addressing challenges swiftly, promoting transparency from top leadership down. Ultimately, the success of such programs hinges on employer diligence in ensuring staff awareness and proactive problem resolution, preventing situations where employees only learn about their rights after encountering major issues.”

For organisations lacking clear ethical codes or whistleblowing policies, individuals in positions of responsibility should take steps to implement them.

In the UK, guidance is available from sources such as the British Standards Institute’s Code of Practice PAS 1998:2008, the UK Whistleblowing Commission Report and the Department for Business, Innovation and Skills’ Whistleblowing Guidance for Employers.


Legal protection of whistleblowers

The Building Safety Act 2022 in England (BSA) does not replace the existing workplace whistleblowing regime, but sits alongside it. Trowers & Hamlins’ Reseigh explains that the existing law on whistleblowing protects workers who expose wrongdoing within organisations. All employees and workers have the right to raise a protected disclosure. And for it to be a qualifying protected disclosure [which is protected in law under the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996], it has to meet a specific test.

“They have to be disclosing information and they must have a reasonable belief that the information tends to show a specific kind of wrongdoing, and that the disclosure of the information is in the public interest. The wrongdoing needs to be the commission of a criminal offence; a breach of a legal obligation; the endangerment of health and safety of any individual; a miscarriage of justice; environmental damage; and/or the deliberate concealing of information about any of the above. If this is all satisfied then they will meet the test of having made a protected disclosure, as long as the disclosure is made to the right person,” she says.

Normally protected disclosures are made to that person’s employer. But a protected disclosure can be made externally as well to a third party, known as a ‘prescribed person’. Examples of prescribed persons are regulators, like the GB Health and Safety Executive (HSE). So, for example, someone could theoretically make a protected disclosure relating to building safety to the HSE. The BSA doesn’t replace this existing regime, but rather it supplements it.

“It’s important to understand the protection an employee or a worker has if they have made a protected disclosure,” says Reseigh. “It gives protection to employees from dismissal, because if the reason or principal reason for dismissal is that they made a protected disclosure, then the dismissal is automatically unfair.

“A worker is also entitled not to be subjected to any detriment on the ground that they made a protected disclosure. The definition of worker for these purposes is quite wide and includes employees and can sometimes include consultants. They can bring employment tribunal claims to enforce these types of protection.”

The BSA now imposes additional requirements for employers as well. Wrongdoing in the construction sector can have serious consequences, and it is critical for employers in the sector to have structures in place so staff know how they can raise workplace related whistleblowing concerns.

The BSA

The majority of new regulations accompanying the BSA came into force in October 2023, with varying transitional arrangements. The Building Safety Regulator (BSR) is the authority for higher risk buildings (HRBs), with dutyholders and a competence regime applying to HRBs and some non-HRBs with variations. The new dutyholder regime includes obligations for clients, principal contractors and designers to report risks to the BSR. Such disclosures will provide whistleblower protection from criminal proceedings.

Stubbs says: “The building aspect of the act mandates the establishment of reporting systems for significant risks related to structural safety. While the specifics of reporting are less defined, the focus is on risks posing threats to life or causing serious injury to many individuals. This includes hazards like flammable materials in cladding.

“The aim is to target decision makers who are aware of such risks, encouraging whistleblowing at a strategic level. Employers are obligated to implement accessible reporting systems, potentially involving residents and visitors. Although this requirement may seem burdensome, modern technology can facilitate compliance. However, handling complaints and forwarding qualified issues to regulators adds complexity.”

While the new regulations add an additional layer to existing frameworks, they primarily target strategic risk management. Stubbs adds: “Businesses should prioritise implementing whistleblower policies alongside other workplace policies, particularly amid considerations of building safety. These policies should outline procedures for reporting wrongdoing, designate responsible parties for addressing complaints and establish transparent investigation protocols. In an era where authenticity and transparency are increasingly valued by employees and workers across industries, organisations must ensure that concerns raised by staff are taken seriously.

“Therefore, it’s advisable for businesses, including those in the construction sector, to seize the opportunity to review and align their policies and procedures accordingly, ensuring they are in line with best practices and meet the expectations of their workforce.”


Further reading
Cabe Competency Frameworks bit.ly/CABE_competency
UK Whistleblowing Commission Report bit.ly/PCAW_whistleblowing
Department for Business, Innovation, and Skills’ Whistleblowing Guidance for Employers bit.ly/GOV_whistleblowing
Engineering Council’s advice on whistleblowing bit.ly/EC_whistleblowing


 

Image credit | iStock

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