The importance of whistleblowers cannot be understated for ensuring the highest standards are maintained in financial services businesses.
Outside the realm of financial services, the #MeToo movement has
renewed the focus on providing adequate protection for
whistleblowers to such an extent that the UK legal regulator has
issued a warning to lawyers confirming that confidentiality
obligations cannot be relied on to prevent a person from
'blowing the whistle' on a current or former
employer.
In light of this doubling down on protection for whistleblowers, it
is notable that Jersey's legislative framework is currently
silent on any kind of whistleblowing measures, putting it roughly
25 years behind England and Wales. All this is soon set to change,
however, with the States of Jersey aiming to bring forward draft
whistleblowing legislation before the end of this year.
Given that so much of Jersey's employment law is modelled on
the UK, our expectation is that Jersey's new whistleblowing
regime will largely mirror that of England and Wales. This article
will, therefore, set out the current UK whistleblowing framework,
before considering any potential challenges that having a similar
type of regime would pose in Jersey.
Current whistleblowing regime in England and
Wales
The current whistleblowing regime in England and Wales is primarily
set out in the Employment Rights Act 1996 as amended by the Public
Interest Disclosure Act 1998. Under the legislative framework,
'workers' are able to disclose certain information about
their current or former employer and gain protection in relation to
that disclosure. Whilst the legislative provisions are relatively
broad (for example, the concept of 'worker' is much wider
than the usual legal definition, extending to agency workers and
seconded workers), it is not the case that a worker can simply make
any complaint against a current or former employer and gain
protection as a whistleblower. To qualify for protection, a
complaint must constitute a 'protected disclosure' –
a test which is subject to the following conditions:
- There must be a disclosure of information.
- The worker must reasonably believe that the disclosure is made in the public interest.
- The worker must reasonably believe that the disclosure concerns one of the six qualifying disclosures (these include, for example, that a current or former employer is in breach of a legal obligation, or that their conduct amounts to a criminal offence).
Note that under UK employment law, there is a distinction
between worker and employee. However, as there is no concept of
worker in Jersey, it's likely that all employees will be
covered by the proposed legislative framework.
A fundamental aspect of the whistleblowing regime in England and
Wales is that workers are protected from being dismissed or
suffering some other detrimental treatment as a result of making a
protected disclosure. Detrimental treatment includes actions such
as demotion, suspension or the refusal of a promotion. Further, if
an employee is dismissed for whistleblowing, the dismissal will be
automatically unfair if the reason for it is because the worker in
question has made a protected disclosure. The employee does not
need to have a certain length of service to qualify for this
protection and, significantly, there's no cap on the
compensation which can be awarded.
Jersey employers should also be aware that under the UK regime, it
is not possible to agree with individuals that they will not make a
protected disclosure – any term of an agreement between an
employee and employer preventing the employee from whistleblowing
will be deemed to be automatically void.
Potential challenges with the regime
Walkers hosted a round table with clients within the financial
services industry as part of the consultation process in Jersey.
The unanimous feedback from the attendees was that there is
widespread support for a similar UK style protected disclosure
regime to be introduced and that it is important for Jersey that it
has effective protection for whistleblowers in place.
However, England and Wales' whistleblowing framework is not
without its challenges. If adopted in Jersey, employers should be
aware that the following aspects of the regime need to be
approached with caution:
- the term 'disclosure' is not actually defined in the legislation. In turn, this could lead to it being applied in a wide range of contexts;
- the test for what constitutes 'in the public interest' is hard to pin down and will likely be considered on a case-by-case basis. This issue has been complicated further by recent UK case law confirming that a disclosure in the private interests of a worker may also be in the public interest if it relates to, and would serve, the private interests of other workers. Having such a wide test may not translate as well in a smaller sized jurisdiction like Jersey; and
- the penalty which employers could incur is uncapped. This could pose significant costs to businesses who are found to have subjected employees to detrimental treatment as a result of making a disclosure.
Practical implications
In terms of the practical implications, it may be the case that
many Jersey-based companies already have whistleblowing policies in
place or operate hotlines as a matter of good practice. Financial
services firms in particular, who are subject to greater scrutiny
under the UK regime, should ensure that they have a written
whistleblowing policy in place containing details of whistleblowing
channels where complaints about wrongdoing can be reported. New
whistleblowing policies may also have some interaction and overlap
with existing company policies (such as grievance and disciplinary
procedures) and so the new legislation could be an opportunity for
employers to not only introduce new policies, but strengthen
existing ones.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.