Whistleblowing: still a risky business
Industry experts on whistleblowing have been lobbying hard for reform, but it is still often the case that whistleblowers with the best of intentions have found themselves in legal grey areas, ending up blacklisted, bankrupt and unable to work in the City again.
Barings Bank’s collapse, the Zeebrugge ferry disaster and the Piper Alpha oil rig explosion – it took a series of scandals and fatal tragedies for the government to finally develop regulation in 1998 to protect whistleblowers: the Public Interest Disclosure Act (PIDA).
To receive protection under the act, whistleblowers must make ‘qualified disclosures’ that are in the public interest; a complex and fact-dependent test.
These must show concerns about breaches of civil, criminal, regulatory or administrative law, miscarriages of justice, dangers to health, safety and environment, and a cover-up of misconduct.
“The one in financial services that we rely on is that the person believes there has been a failure to comply with the legal obligations,” says Clive Howard, an employment lawyer at Slater and Gordon. It is essential to demonstrate a breach of law, not just company policy.
“The problem people face is showing a breach of a legal obligation. Often in financial services, the whistleblower’s focus tends to be on internal rules operated by the bank, such as a failure to document trades or do them in a certain way.”
This is something of a grey area, as often an employer will argue its own internal rules are in line with the Financial Conduct Authority’s (FCA) requirements, but they are not legal rules.
Typically, the best outcome in the event of a dispute is for employees and employers alike to settle. It can be costly and risky for an employee to go to an employment tribunal, not to mention difficult to prove that any adverse treatment suffered is due to blowing the whistle.