Posted by Elizabeth Painter, Trainee solicitor
What can we learn from Barclays boss’ hunt for a whistleblower?
The chief executive of Barclays, Jes Staley, is facing serious action after he sought to uncover the identity of an employee whistleblower last year with the assistance of a US law enforcement agency. In September 2016, the Finance Conduct Authority (FCA) imposed new rules on banks to protect the anonymity and confidentiality of whistleblowers. But Mr Staley claims his actions were an honest mistake and he was trying to protect the employee’s identity…are you convinced?
What’s wrong with what Mr Staley did?
Whistleblowing is the act of reporting or exposing wrongdoing, either within an organisation or externally. In this instance, a Barclays employee had raised complaints internally about a senior colleague, whom Staley had recruited to the bank.
Aside from the obvious that Mr Staley’s actions were in breach of FCA regulations, the Employment Rights Act 1996 also protects workers who make qualifying whistleblowing disclosures. Whistleblowers are protected from detrimental treatment and dismissal. It is plausible that Mr Staley’s attempt to find out the identity of the whistleblower could amount to a detriment. If so, both Barclays and Mr Staley personally could have faced a whistleblowing claim, with uncapped compensation.
It will be interesting to see how the reports produced by the FCA regulators conclude the investigation against Mr Staley. Unfortunately, Barclays haven’t done much to discourage such behaviour. A deduction from Mr Staley’s £1.3 million bonus is unlikely to have a catastrophic effect on his quality of life, and the Board has already confirmed Mr Staley will be reappointed at the annual shareholder meeting on 10 May 2017.
Why should employers protect the identity of whistleblowers?
Employees are usually the first to notice when things have gone awry. It is essential that whistleblowers remain anonymous so that employees feel encouraged to report malpractice, without fear of retaliation or discrimination. In this way employers can create a transparent organisational culture, where employees feel supported, and can tackle any wrongdoing with integrity.
Also if employees, particularly senior management, don’t know the identity of the whistleblower, there is less of a risk that their actions could subject a whistleblower to a detriment. This in turn, mitigates the risk of a tribunal claim being brought against the employer – and individuals like Mr Staley personally.
Why do employers need a whistleblowing policy?
Implementing a whistleblowing policy will help employers adopt a consistent approach to combatting wrongdoing, provide for training for senior managers and for confidential investigations, and is one way to reduce the risk of a tribunal claim. Mr Staley’s case further highlights the importance of ensuring that whistleblowing policies are effectively communicated by employers.
For help updating your whistleblowing policies, contact a member of our Employment team
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