One of the common themes we are currently being asked to advise on across the Channel Islands is how to deal with a 'whistle-blower' (an employee who informs either on a person or organisation engaged in malpractice). What often surprises our clients is that neither Guernsey nor Jersey has any specific statutory protection for whistle-blowers. However, this does not mean that employees have no statutory protection if they 'blow the whistle'. In this article we consider statutory protections in Guernsey and Jersey which may apply and how the legal landscape is changing.
Whistleblowing and breach of statutory rights
In both Guernsey and Jersey, an employee who claims that their employer has breached very specific statutory rights has protection from dismissal from the first day of their employment (there is no need for the employee to have any qualifying period of service). The specific rights which afford this protection are those conferred under the Islands' respective employment protection and discrimination laws and include the right not to be discriminated against or to be victimised for speaking up on behalf of someone else who is being discriminated against, the right to take maternity leave and other forms of family leave, and the right to be paid the minimum wage.
If the whistle-blower's complaint relates to such a right and they are dismissed as a result of raising it, they will have been automatically unfairly dismissed and are entitled to the full unfair dismissal award. If the dismissal had a discriminatory element, they will also be entitled to a discrimination award.
Whistleblowing and health and safety
Guernsey law provides specific protection against dismissal for employees who have raised health and safety concerns either because it is part of their role to do so, or because they have taken it upon themselves to raise them in circumstances where there is no health and safety representative at their place of work. Again, automatic protection from unfair dismissal for raising such a concern exists from the first day of employment.
Whistleblowing and protected roles
In addition to offering a degree of protection to those who carry out a health and safety role, the law protects those employees designated by their employers as statutory data protection officer ("DPO") from being dismissed or penalised for performing their duties or functions of office as DPO.
Perhaps surprisingly, there is no equivalent protection for a financial services employee holding the statutory office of money laundering reporting officer, or indeed for any employee carrying out a compliance function. However, both the GFSC and the JFSC have had whistleblowing hotlines in place for some years and financial services businesses which take reprisals against a whistle-blower, acting in good faith, can expect, at the very least, to be closely scrutinised by the Regulator.
Whistleblowing and the fundamental right not to be unfairly dismissed
Under both Guernsey and Jersey law, to avoid a finding of unfair dismissal, an employer has to demonstrate that the dismissal was for a statutory "fair reason". It may be possible for an employer to justify dismissing a whistle-blower on conduct grounds, for example by showing that the employee was motivated by bad faith or acted in clear breach of their express or implied duty of good faith. Otherwise, justifying the dismissal on one of the other limited available statutory grounds (capability, redundancy, statutory prohibition and 'some other substantial reason') may be difficult.
In both Islands, employees will normally require one years' continuous service before they can bring an unfair dismissal complaint (relevant exceptions being health and safety and breach of statutory rights, as described above).
Whistleblowing and the contract of employment
The law implies a duty of confidentiality into every employee's contract of employment which prevents them, in normal circumstances, from sharing their employers' sensitive information more widely. Commonly, employees will also be subject to an express duty of confidentiality under a written clause in their employment contracts. On the face of it, these duties might be seen as preventing an employee from blowing the whistle on malpractice. However, the law has long recognised a 'public interest' defence which allows employees to breach their express and implied confidentiality obligations and disclose malpractice at work (such as a cover up of criminal activity, financial irregularities, or danger to public health) provided they act in good faith, make reasonable efforts to check the truth of their allegations and make the disclosure to a person or entity who has a proper interest to receive the information (generally the police or a regulator, only rarely the media).
This means employees cannot simply spread damaging, malicious or salacious information that is clearly confidential in the hope they can later argue that it was in the public interest to do so
Whistleblowing and the fundamental right not to be unfairly dismissed
Employees owe a duty of confidentiality to their employers which prevents them, in normal circumstances, from sharing their employers' sensitive information more widely. On the face of it, this duty might be seen as preventing an employee from blowing the whistle on malpractice. However, the law has long recognised a 'public interest' defence which allows employees to breach their confidentiality obligations and disclose malpractice at work (such as a cover up of criminal activity, financial irregularities, or danger to public health) provided they act in good faith and make reasonable efforts to check the truth of their allegations.
Employees cannot simply spread damaging, malicious or salacious information that is clearly confidential in the hope they can later argue that it was in the public interest to do so. The disclosure must also have been made "to one who has a proper interest to receive the information"; generally this will be the Police or a regulator (only rarely to the media).
Whistleblowing – what the future may hold
Both the GFSC and the JFSC have introduced whistleblowing hotlines to encourage the reporting of misconduct in the financial services sector.
In Guernsey, the Financial Services Business (Enforcement Powers) (Bailiwick of Guernsey) Law, 2020 (the "Enforcement Law") was submitted to the States for approval earlier this summer. As things stand, advice is awaited from HM Procureur on any legal or constitutional implications. If approved, the States will have the power under the Enforcement Law to implement secondary legislation (equivalent to the UK's Public Interest Disclosure Act 1998) protecting whistle-blowers from dismissal and overriding contractual confidentiality duties / gagging clauses aimed at preventing public interest disclosures.
The same issues are under active consideration in Jersey.
Until such time as legislation is introduced into the Channel Islands, employers can take steps to protect their reputations and support their staff by taking complaints seriously, introducing (and training staff in) an easily accessible whistleblowing policy and developing a culture where staff feel safe to make disclosures.
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.