Whistleblowing issues for employers
First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), November 2021
In recent years there have been a number of high-profile scandals brought to light by the actions of so-called ‘whistleblowers’ – individuals who make public their concerns about an organisation’s wrongdoing – including Edward Snowden’s revelations about the US National Security Agency and the recent ‘Facebook Files’ case. Often, the whistleblower is an employee of the organisation accused of the wrongdoing. Some jurisdictions have developed specific legal protections against mistreatment of such employees by their employers, including Bermuda.
In Bermuda, the relevant statutory protection is contained in the Employment Act 2000 (the “Act”). Under s.29A of the Act, protection is given to an employee who makes a ‘protected disclosure’. S.29A(1) provides that:
“a person makes a protected disclosure if, in good faith, he notifies a listed person that he has reasonable grounds to believe—
(a) that his employer or any other employee has committed, is committing, or is about to commit, a criminal offence or breach of any statutory obligation related to the employer’s business;
(b) that he himself has been directed, either by his employer or by one of his supervisors, to commit such a criminal offence or breach of statutory obligation; or
(c) that information tending to show any matter falling within paragraph (a) or (b) has been, is being, or is likely to be, altered, erased, destroyed or concealed by any person.”
Protected disclosures
The essential elements of a protected disclosure can be summarised as a disclosure made:
- in good faith;
- to a ‘listed person’; and
- in respect of which the employee has a reasonable belief as to one of the matters in (a) to (c) above.
As to the good faith requirement, an employee will likely fail here if it can be shown, for example, that they made the disclosure for an ulterior motive, such as to protect their position in a redundancy exercise or as revenge against the subject of the complaint.
The ‘listed persons’ to whom the employee must make a disclosure include their employer, manager or supervisor, a police officer, and a range of statutory and governmental offices and bodies, such as the Auditor General and the Chief Immigration Officer. It is typical of whistleblowing law in other jurisdictions that employees are protected if they blow the whistle to a regulatory authority. Notably, however, neither the Bermuda Monetary Authority nor the Regulatory Authority are ‘listed persons’. Further, an individual cannot make a protected disclosure to the press or media, unlike in some other jurisdictions.
As to the requirement that the employee have reasonable grounds to believe in the truth of the information they disclose, it is not clear whether this test is objective (i.e. are there sufficient objective grounds on which the employee’s belief can be considered reasonable) or subjective (i.e. is it sufficient merely that the employee believes it to be reasonable). The wording of s.29A(1) could even suggest that the employee need only state that they have reasonable grounds for their belief, even if in fact they have no such belief, although such a result would surely have been unintended by the draftsman.
What is clear is that an employee’s belief in the truth of their disclosure can be reasonable even if the allegation turns out to be completely unfounded.
Legal protection
Whistleblowers benefit from enhanced protection under the Act. Specifically, s.28 states that dismissing an employee for making a protected disclosure is automatically unfair. The employee would then be entitled to reinstatement or re-engagement, or compensation of up to 26 weeks’ wages.
Although not stated explicitly, it is likely also that disciplinary action on the grounds that an employee has made a protected disclosure would be unreasonable, and thus unlawful under s.24 of the Act.
Confidentiality
Section 29(4) provides that:
“Any provision of a contract of employment, or other agreement relating to the terms of employment of a person, shall be void insofar as it purports to preclude a person from making a protected disclosure”
It is therefore important for employers to include an appropriate caveat in any confidentiality clause in its contractual agreements with employees (for example in employment contracts and severance agreements), permitting the employee to make protected disclosures. Otherwise, there is a risk of the clause being void.
Practical tips
There are a number of steps employers can take to guard against the risk of whistleblowing claims.
Firstly, it is advisable to have a formal whistleblowing policy in place, addressing matters such as how whistleblowing reports can be raised, how they will be investigated and confirming that whistleblowers should not be subject to retaliation.
As to reporting, while whistleblowers cannot be prevented from raising complaints to external listed persons, employers would usually prefer that such matters be raised internally in the first instance. Providing a clear and confidential route by which this can be done, for example via an anonymous hotline, will usually assist in this respect.
It would also be prudent to train managers on how to spot and deal with whistleblowing complaints, and how to ensure that whistleblowers are not subject to mistreatment.
Such steps can strengthen the employer’s position in the event it faces a claim, as they will help demonstrate the organisation’s good intentions and that it takes steps to protect whistleblowers.
If you would like to discuss the issues addressed in this article please contact Bradley Houlston ([email protected]), the head of our employment law practice
