Barclays CEO under investigation for trying to identify whistle blower – what protections do ‘whistle blowers’ get?

Barclays CEO, Jes Staley, is currently being investigated by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) for trying to identify a whistle blower. Whistle blowing is the collective term given to reporting wrongdoing at work and this raises a number of financial, practical, legal and moral considerations for both employers and employees.

If workers bring information about a wrongdoing to the attention of their employer or a relevant organisation, they are protected in certain circumstances under the Public Interest Disclosure Act 1998. The law that protects whistle-blowers is for the public interest and enables people to speak out if they find malpractice in an organisation. To be a ‘qualifying’ disclosure which is protected under the Act there must be a disclosure of information where the worker reasonably believes (and it is in the public interest) that one or more of the following matters is either happening, has taken place, or is likely to happen in the future:

  • A criminal offence;
  • The breach of a legal obligation;
  • A miscarriage of justice;
  • A danger to the health and safety of any individual;
  • Damage to the environment; and
  • Deliberate attempt to conceal any of the above. 

Workers who ‘blow the whistle’ on wrongdoing in the workplace can claim unfair dismissal if they are dismissed or victimised for doing so. There is no minimum period of service required (which is normally at least 2 years for unfair dismissal claims) and there is no restriction on the maximum unfair dismissal compensation award.

In the recent case of Barclays, Mr. Staley took measures to identify the author of two letters (considered to be whistleblowing) because he thought the letters were an ‘unfair personal attack on a senior employee’. As outlined above, the employee in question was protected by law and not to be treated unfairly or be dismissed for the reported wrongdoing. Mr. Staley has said that he had not been aware of the fact that it was not permissible to identify the author of the letters.

Barclays’ board has announced that it would be issuing a formal written reprimand to Mr. Staley and has decided that ‘a very significant compensation adjustment will be made to Mr. Staley’s variable compensation award’ as a result of this. The bank has also said that it will review its whistleblowing programme in light of recent events.

A recent global study undertaken by the Global Business Ethics Survey titled ‘Measuring Risk and Promoting Workplace Integrity’ of employees in 13 countries found that 63% of British employees who reported wrongdoing experienced retaliation. In light of these statistics and the recent Barclays incident, it is important that employers encourage employees to speak up and following any report focus on the misconduct reported rather than the person who reported it.

If you have any questions regarding whistle blowing, please contact a member of the Employment team.