More than half of individuals blowing the whistle on workplace malpractice are now relying on secret audio recordings to support their cases.

One of the country's leading employment law firms has reported that staff in both the public and private sector are increasingly resorting to covert methods because of concerns bosses might try to cover up allegations of poor standards. Carl Moran, a partner with JMW Solicitors, said whistleblowers seeking to draw attention to matters of public interest are now “commonly” using smartphones in meetings with managers to gather evidence.
He added that bosses appeared as keen to avoid scrutiny from regulatory bodies as they were eager to prevent negative headlines.

“We have seen a considerable increase in the number of individuals who have approached us looking to make public interest disclosures in recent years across a wide range of different industries. One of the most conspicuous elements of those enquiries has been the frequency with which they have presented recordings of meetings to substantiate their claims, something which is becoming much more prevalent than before. I have no doubt that is due in part to the increased ease with which people can record potentially compromising conversations on smartphones and other very portable and concealable devices. Many people have told us that they felt driven to do so because they feared a written transcript of a meeting might either be selective in terms of its content or not record the true manner or tone in which things had been said. Some have even described making an audio recording almost as a last resort because management or personnel officers had refused their formal request for such a recording to be made.”

Mr Moran said his firm was now handling 40 percent more whistleblowing cases than it had three years ago. He added that in the last 18 months alone, JMW had secured settlements worth more than £2 million for clients working in education, financial services, IT, the NHS, chemical and care industries who had been unfairly treated after attempting to bring malpractice to light. Mr Moran reckoned that the decision of the Health Secretary, Jeremy Hunt, to criticise an NHS trust’s attempts to gag a whistleblowing executive in February last year seemed to have fuelled the confidence of employees determined to expose wrongdoing. Gary Walker, the former chief executive of United Lincolnshire Hospitals Trust, was threatened with legal action for breaching the terms of a non-disclosure agreement signed after he left his post following claims that patient safety had been put at risk.

In July this year, the Advisory, Conciliation and Arbitration Service (ACAS) published figures showing an increase in the proportion of whistleblowing cases which it dealt with.
The organisation’s annual report for 2013-’14 stated that public interest disclosures featured in five percent of all cases – up from 3.4 percent the previous year. Mr Moran stressed that it was important for staff and employers to recognise their respective rights and responsibilities when it came to making or dealing with complaints of poor standards.

He added that even though covert recordings were not strictly legal, they tended to be given special treatment by employment tribunals asked to decide on the issues which they presented.

“Whistleblowing is a relatively complex area of the law and someone with an issue to highlight still needs to follow the proper procedures to gain full legal protection.
“Not every boss wants to keep a lid on malpractice. The more enlightened will recognise that having a formal whistleblowing policy – in much the same way that they should have in place to prevent racial or sexual abuse – is an opportunity to maintain a happy and productive workplace. Such a document would also, of course, avoid the possibility of legal or regulatory action being taken against them should they fail to deal successfully with a suggestion that something is amiss. Employees who feel that they don’t have that kind of protection should understand that covert recordings are not strictly admissible. However, tribunals will often balance the importance of their contents and the justice they may provide for the whistleblower and the public at large against their strict position in law”.