Knowledge

The Jersey Employment Forum has published its report (the "Report") to recommend the introduction of a public interest disclosure regime in Jersey, providing day one statutory protection from unfair dismissal or an act of detriment for individuals who make protected disclosures in the public interest (commonly referred to as "whistleblowing").

The Report contains 24 recommendations, and a link to the full report can be found here. In this briefing, we have summarised the key proposals contained in the Report, and discuss the potential implications for our clients.

The Report is now with the Minister for Social Security to consider. If the recommendations in the Report are accepted, the next step would be for a proposition to be tabled to seek the introduction and drafting of new legislation, which would then go before the States Assembly for debate.

Summary of the recommendations

• To create a day one statutory protection from unfair dismissal or an act of detriment (e.g. demotion, stalled career progression or exclusion from the workplace), for individuals who make a protected disclosure in the public interest. The protection shall be introduced to all sectors at the same time.
• Whistleblowing protection should be offered to employees (directly employed or employed through an agency or through a service entity), officers of the States of Jersey Police and officeholders in crown employment.  There are a number of other groups where protection could be extended for example non-executive directors or trustees, perhaps in a second phase.
• A "protected activity" will likely cover where an organisation is, or the whistleblower has a reasonable belief an organisation is: 
  • breaking the law (or intends to break the law);
  • covering up wrongdoing;
  • causing environmental damage; and/or
  • causing a miscarriage of justice.

In considering this, the organisation does not actually need to commit an offence and the allegation does not necessarily have to ultimately be found to be true but the whistleblower must have a reasonable belief that they can draw the conclusion that the facts show there is protected activity.

• Personal grievances that arise in the workplace are not covered. These would be dealt with under an employer's internal grievance procedure;
• A "public interest test" rather than a "good faith test, which focuses on the disclosure itself and the impact and benefit to the public in making the disclosure, rather than the motivation of the person making the disclosure, although the whistleblower should have a reasonable belief that disclosure is in the public interest.
• The process to be followed in raising a concern should be in the first instance to approach the person or organisation responsible for the failure. If that is not possible, or does not resolve matters, a report should be made to a prescribed person, which may include organisations such as the Jersey Financial Services Commission, the Jersey Office of the Information Commissioner etc. Disclosure should not be made to the media or for financial gain – protection will not be provided in these circumstances.
• Claims in relation to unfair dismissal or detriment, where the detriment is suffered in Jersey, should be made to the Employment and Discrimination Tribunal within eight weeks of the dismissal or detriment (the protected act itself may have occurred days, or even years before, or even be a future act where there is an intention to break the law).
• In relation to compensation, there will be three potential elements:
  • an award for unfair dismissal where the employee has been dismissed as a result of them making a protected disclosure. This would be an automatically unfair dismissal. There would be no length of service requirement, so this would be a day one right. Compensation for that unfair dismissal would, therefore, be based on length of service, with a range of four to 36 weeks' pay*. The new uplift provisions, which would allow for an uplift in compensation of up to 25% where the employer's conduct is particularly bad would apply;
  • an award for financial loss (actual loss and future loss), and for hurt and distress. The recommendation is that this is initially aligned to the compensation limits for claims of discrimination, being up to £30,000* per head of claim, but the Employment Forum strongly recommend that the Government and States Assembly consider amending this in the future to allow for uncapped awards, similar to that of the UK where high profile cases are often reported to be in the hundreds of thousands of pounds; and
  • an award for suffering a detriment, which will be capped at a maximum of eight weeks' pay*.
• Jersey Advisory and Conciliation Services should have a key role to play, which would encompass the provision of advice to potential whistleblowers and the provision of template documents for organisations to utilise to develop whistleblowing policies, however they will not be a prescribed person for the purpose of reporting a concern.
• Any provisions relating to anonymity that apply to other employment claims should also apply to whistleblowing cases.

What does this mean for employers?

Many employers, for example those in financial services, government, construction, and certain regulated sectors, such as utilities and energy, will already be familiar with the concept of whistleblowing and enabling employees to make a protected disclosure. They will already have a whistleblowing policy in place to encourage employees to speak up and raise any concerns, which will be investigated and dealt with appropriately. They will also be subject to regulations which would impose heavy fines and penalties if organisations were to undertake many of the activities that fall within the definition of protected activity. Therefore, the impact for these organisations is likely to be less onerous in the first instance.

If draft legislation is approved, it would be prudent to review existing policies in line with that draft legislation, and to update policies and provide training (as needed) to embed these within the organisation.

For organisations which do not have a whistleblowing policy, consideration should be given to drafting one in advance of legislation being passed, while not mandatory, would reflect good employment practice.

The main area of focus will be on the compensation regime and whether this results in a rise in individuals raising protected disclosures. There is a stigma attached to the label of whistleblower, and from case law reported in the UK, blowing the whistle can often be seen as career ending. In a small jurisdiction like Jersey, this may have an even greater impact on an individual's potential career prospects. Many employers will likely hope to see a balance struck, as they want to promote a culture where employees can speak up and raise concerns without fear of retaliation.

We look forward to reviewing and providing further commentary on the draft legislation once it becomes available.

*We have used the compensation figures which will take effect once the proposed amendments to employment and discrimination legislation come into force, anticipated to be later this year.