Jersey publishes proposed new Whistleblowing Law

For those employers who have a presence in either the UK or the Isle of Man, some of the concepts will feel very familiar, although there are some significant differences. For example, there is a wide definition of what constitutes a “protected disclosure” covering a whole range of wrongdoing including criminal offences, environmental damage, health and safety, data protection, and other regulatory breaches.

The draft law also imposes specific and onerous duties on the receivers of protected disclosures, which includes an obligation on them within a reasonable period to:

• provide a formal written notice to the discloser (which includes a summary of the receiver’s understanding of the protected disclosure);
• take reasonable steps to keep confidential information which might identify the discloser (unless this is necessary to investigate);
• take reasonable steps to investigate the protected disclosure; and
• inform the discloser of the outcome of that investigation, including any action to be taken.

Whilst there are currently no proposed sanctions in relation to the duty on receivers, the draft law includes protections for employees who are either dismissed or subjected to less favourable treatment. The proposal is that the compensation for such claims will align with the current caps on discrimination claims of up to £30,000, made up of financial loss as well as for hurt and distress. Where an employee is dismissed by reason of having made a protected disclosure, they will also be able to claim automatically unfair dismissal.

What changes are made to the draft law before it is finally introduced will be interesting to see. In particular, the duty on the receiver is likely to cause difficulties in practice, when very often managers and directors may not necessarily understand what they are receiving is a protected disclosure – this will mean training for staff will be essential.

There is no doubt that in a jurisdiction where financial services regulation is very tight, it has always been slightly odd that Jersey doesn’t already have a whistleblowing framework in place. In that regard, it should be welcomed. The report states that the intention is to create a straightforward and uncomplicated statutory whistleblowing process for Jersey. Whilst the ambition is laudable, the reality (unfortunately for anyone who has ever had to deal with whistleblowing litigation in the UK or the Isle of Man before) is that the two things you can almost always guarantee is that cases are neither straightforward or uncomplicated!

Full details of the report and draft law can be found here.