MOrsel: Whistleblowing by employees
17 December 2018
Whistleblowing is the term used when a worker passes on information concerning wrongdoing that is in the public interest. The wrongdoing will typically have been witnessed at work.
There is no statutory protection for whistleblowers in the Channel Islands, despite this being in place within the UK since 1999. This means that those who report wrongdoing at work could face victimisation, dismissal without notice or legal action for breaching duties of confidentiality even where such treatment is linked directly to the individual's actions in raising valid public interest concerns.
This may however change soon.
Whistleblowing in financial services businesses over the last few years has been promoted by the establishment of whistleblowing hotlines to report regulatory misconduct or intelligence by the islands' respective regulatory authorities. Callers may give their name and contact details but can remain anonymous. Links to the two hotlines are here.
More recently consultation has taken place in respect of the Financial Services Business (Enforcement Powers) (Bailiwick of Guernsey) Law, 2017 (the "Enforcement Law") (link here). If the Enforcement Law receives approval and Royal Assent the States will be empowered to enact Ordinances to protect whistleblowers. Drafting indicates that the envisaged Ordinances would provide whistleblowers with the right not to be unfairly dismissed, would allow workers to bring action for victimisation or detriment suffered due to whistleblowing and would exempt them from their implied / contractual duties of confidentiality to their employer. Compensation for dismissal due to whistleblowing is uncapped in the UK and so this could also potentially be the case in Guernsey.
We are not currently aware of any plans to introduce whistleblowing legislation in Jersey. As in Guernsey, however, the current lack of a statutory regime and effective protection for whistleblowers is a clear gap in the island's corporate governance regime. If Guernsey was to introduce new statutory rights for individuals who raise public interest concerns, it would be difficult to see how Jersey could fail to do so in parallel.
So would new whistleblowing legislation have much impact in practice?
From a management point of view, businesses would require a whistleblowing policy, training on how to handle potential whistleblowing scenarios and support should whistleblowing occur. Whilst it may be more difficult to dismiss an employee who has made a protected disclosure, or to distinguish complaints of whistleblowing detriment from employment relations disputes that are unrelated to a protected disclosure, employers would also benefit from the early disclosure of potential issues and the creation of a more supportive working environment.
For more information in respect of whistleblowing, please get in touch with a member of the Guernsey or Jersey employment team.