In virtually every annual report issued by the Jersey Financial Services Commission (the ‘JFSC’) the value and importance derived from whistle-blowers during the previous year is acknowledged, demonstrating just how important whistle-blowing has become. Information from whistle-blowers has for several years provided valuable information that often helps in determining if a regulatory investigation should be launched. The JFSC has an experienced and well-developed whistle-blowing capability and on occasions helped other jurisdictions to create a similar capability.
Despite the importance of whistle-blowing information, little advice is available for potential whistle-blowers or indeed businesses on the merits and pitfalls of operating a whistle-blowing facility and the art of safe guarding the interests of a whistle-blower.
For the whistle-blower the decision to speak up is never an easy one and is often preceded by many sleepless nights and a great deal of anxiety. Job security, the risk of fall-out from colleagues, breaching confidentiality, or simply the worry of being implicated in some form of wrongdoing are common issues that a whistle-blower can find themselves wrestling with. Whistle-blowers that turn to the JFSC whistle-blowing facility are often driven by a strong sense of duty coupled with an absence of effective in house whistle-blowing facilities or simply a lack of confidence that their firm will act on their concerns.
Whistle-blowing is seen globally as a force for good and both the private and public sectors operate whistle-blowing hotlines of various descriptions. Information provided by whistle-blowers often leads to the identification of serious misconduct and provides an opportunity for a regulator or a business to address problems that had not previously been appreciated. Perhaps surprisingly many whistle-blowers prefer face to face meetings rather than simply availing themselves of the hotline and the benefits that come with anonymity. Those meeting with a whistle-blower should always be properly trained and have a clear policy within which to operate.
With such benefits of whistle-blowing it is perhaps surprising that many businesses operate without a whistle-blowing policy or lack the experience and capability to deal with a whistle-blower, thereby encouraging the whistle-blower to turn to the JFSC.
The UK afford statutory protection to whistle-blowers in the form of the Public Disclosure Act 1998, but no such legislation exists in Jersey. Despite such an absence of statutory protection the Courts have historically recognised the merits of whistle-blowers and in the majority of cases rule in favour of protecting their identities. If criminal conduct is suspected the individual may be able to avail themselves of the protection afforded to those filing suspicious activity reports under the Proceeds of Crime Law. In Jersey the lack of statutory protection does not appear to discourage individuals from stepping forward and acting as a whistle-blower, particularly in a small community where individuals do not want to be associated with covering up misconduct or worse still being seen to aid and abet a criminal offence.
Businesses of a certain scale should consider adopting a whistle-blowing policy whilst ensuring that those tasked with acting on whistle-blowing information are properly trained to do so. The cost and implications of getting it wrong and compromising the identity or trust of a whistle-blower can be catastrophic and seriously undermine employee/employer relations.
If you need assistance in compiling a whistle-blowing policy and training staff who will be expected to deal with instances of whistle-blowing then please contact Barry Faudemer (+ 44 7797 743631).