Whistleblowing: three recent developments

It’s been a busy few weeks for whistleblowing news. Here is a round-up of three key developments:

1. FCA whistleblowing reports: The number of whistleblowing reports to the Financial Conduct Authority (FCA) has fallen for the second year in a row, from 1,340 whistleblowing reports in 2014 to 2015 to 900 whistleblowing reports in 2016 to 2017, as shown in the FCA’s annual report. This is despite the FCA providing training to help its staff identify whistleblowing and implementing a new case management system. The FCA attributes this decline in whistleblowing reports to whistleblowers being more aware of the reporting mechanisms in their own firms with the result that they are reporting internally first.
2. Calls for EU wide protection: A draft report has been published by the European Parliament that recommends steps that can be taken to implement an EU wide whistleblowing programme by the end of this year. The report’s recommendations include (a) that a new body is created that would be responsible for whistleblowing at EU level and (b) that a public website be launched where complaints can be submitted anonymously.
3. Guidance on public interest test: The English Court of Appeal has this week confirmed in Chesterton Global Ltd v Nurmohamed that a whistleblowing disclosure can be in the public interest (as required under English whistleblowing legislation) where that disclosure is also in the individual’s private interest (for example, where it involves a breach of their employment contract). The Court set out a number of factors that can be a ‘useful tool’ for future courts to consider when analysing whether an individual’s private interest is also in the public’s interest, being:

• the number of people whose interests the disclosure served;
• the nature of the interest affected and the extent to which the interest is affected by the wrongdoing disclosed;
• the nature of the wrongdoing disclosed; and
• the identity of the alleged wrongdoer.