Regulators are increasingly developing whistleblower (or safe reporting) policies. Typically, there is a separate policy for reporting on integrity concerns relating to regulatory staff, committee members, or board members versus raising misconduct concerns about registrants.
The UK was one of the first countries to develop whistleblower protections for both the public and the private sector. It has recently initiated a consultation on possible significant reforms to its legislation which may be of interest to regulators.
The UK approach provides whistleblowers with protections, including compensation from the government, if they experience retaliation for making a report. However, this compensation is only available if the report is made in the public interest. The consultation paper says:
The government considers the public interest test to be an important safeguard. It helps ensure that the whistleblowing framework is used to protect workers who raise concerns about wrongdoing that generally affects others, rather than serving as an alternative route for resolving purely personal employment grievances. The government is therefore not proposing to remove the test.
On this point, the consultation is only on whether the public interest test should be better defined.
It is also important that any whistleblower regime identify what types of conduct should be reported. Currently, the UK list includes:
- a criminal offence
- a breach of a legal obligation
- a miscarriage of justice
- someone’s health or safety is in danger
- damage to the environment
- sexual harassment
- the deliberate concealment of information tending to show any of the above.
The consultation asks whether the categories in this list are sufficient to cover corruption-related wrongdoing and the misuse or abuse of authority. The consultation also asks if disclosures relating to risks arising from AI technologies should be included.
The current approach encourages reporting first to one’s employer or institution. However, it also protects reports made to listed third parties, such as relevant regulators, so long as the reporter reasonably believes the concerns are “substantially true”. The consultation asks for feedback on whether this requirement is helpful in preventing misuse of the right to report or whether it leads to reluctance to make reports at all.
The consultation is also seeking input into whether all larger organizations must have written policies and procedures. The document says:
Some stakeholders suggest that, because there are no specific legal requirements in this area, some employers either do not have whistleblowing policies and procedures or have arrangements that are not sufficiently robust. For example, some employers may not take adequate steps to protect the confidentiality of whistleblowers, which can discourage workers, especially those concerned about retaliation, from raising concerns. As a result, wrongdoing may go unreported, and disclosures may be handled inconsistently or ineffectively, reducing workers’ confidence in the whistleblowing process and making them less likely to speak up.
Interested readers should review the entire document as the above is only a partial summary focusing on issues that might be most relevant to Canadian regulators developing or reviewing their own policies.
