The Jersey Employment Forum has released a report and
recommendation on the introduction of public interest disclosure
(whistleblowing) legislation in Jersey which will give legal
protection to individuals who report certain types of
wrongdoing.
The proposed framework draws upon best practices from the United
Kingdom (UK) and aims to improve Jersey's reputation for good
governance.
The unanimous feedback from the attendees of a roundtable we hosted
last year as part of the consultation process was that there is
widespread support for a UK style protected disclosure regime to be
introduced. Learn more about the current whistleblowing regime in
England and Wales and the feedback from the attendees of our
roundtable in our previous article.
In this article we share a high-level overview of the
recommendations and our key takeaways for financial services
businesses in Jersey.
Overview of the proposed regime
Coverage: The legislation would protect a broad
range of individuals including direct employees, agency workers,
officers of the States of Jersey Police and officeholders in Crown
employment. Protection could also be extended to partners,
non-executive directors and charity trustees.
Protected activity: Protection is set to include
instances where a whistleblower has a reasonable belief that one of
the following is occurring: an organisation is breaking the law
(including health and safety and data protection laws),
environmental damage, a miscarriage of justice, covering up of
wrongdoing or an intention to break the law.
Procedure: The process for making a protected
disclosure should be straightforward and easy to understand and
follow. The recommendation is that internal reporting lines should
usually be exhausted before external reporting to prescribed
persons (such as regulators or government officials) if necessary.
The report recommends that the definition of prescribed persons
should include the JFSC and the JOIC, among others.
Key takeaways
- Protection will be a day one right and dismissal connected with a protected disclosure will be automatically unfair.
- For now, damages will have the same cap as discrimination claims in Jersey (including the upcoming increase to £30,000) with a strong recommendation that down the line this cap should be increased significantly.
- Individuals will likely have only eight weeks to bring a detriment or unfair dismissal claim. Internal procedural or contractual grievances that an employee might have against their employer should be specifically excluded from the scope of whistleblowing protection unless they can demonstrate a direct connection" to a protected activity. It is proposed that disclosures relating to breaches of legal or regulatory obligations - including those under anti-money laundering and data protection - will be protected, even if the wrongdoing occurs outside Jersey, provided the detriment is suffered locally.
- The Forum are not recommending mandatory whistleblowing policies. However, financial services employers will still need to review their employee policies to ensure they track against the new laws, ensure appropriate reporting channels are in place, and train their staff on the new laws ahead of them being implemented.
- Systems and controls, internal governance frameworks and policies and procedures of financial services businesses will, of course, need to be reviewed and updated in due course to provide for an adequate whistleblowing framework with clear reporting channels.
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.
