Reference Case Number: FOI9725
Freedom of Information: Right to know request:
1. When a whistle-blower comes forward, what criteria do you use to assess whether their disclosure is in the public interest and relevant to your area?
2. Do you manage a whistle-blower's expectations when you receive a protected disclosure and how?
3. What support and/or advice do you provide whistle-blowers with – in terms of the difficulty of making a disclosure and its potential repercussions – when they come to you?
4. Where whistleblowing disclosures are deemed qualified and successfully taken to an employment tribunal – what types of action do you take on the companies involved in your remit?
5. What guidance do you provide to the companies you regulate regarding their personal whistleblowing policies?
FCA response:
1. When a whistle-blower comes forward, what criteria do you use to assess whether their disclosure is in the public interest and relevant to your area?
When an individual comes forward to the Whistleblowing Team, we assess whether to accept their disclosure on the basis of the following questions:
- Are they a whistleblower (a worker or ex-worker of a firm subject to FCA to regulation) or an individual in need of the confidentiality and protection our whistleblowing system confers (e.g. family members, ex-spouse, neighbour)?
- Has the matter been raised anonymously and without indication of the status of the individual? (We would handle such disclosures on whistleblowing channels)
- Is the matter raised by the individual relevant to the FCA’s regulation of firms as set out in the Prescribed Persons Order 2014?
- Does the matter relate to a regulated financial service/product?
- Does the matter relate to the conduct of business in the UK?
- Is the matter substantive (i.e. does it allege wrongdoing, indicate harm or a breach of regulation or the law?)?
- Does the matter relate solely to an employment dispute (we are rarely able to take forward disclosures that relate solely to contractual disputes and would suggest in such cases that the individual contact Acas)?
We do not make a separate assessment of whether a disclosure is in the "public interest".
Where individuals cannot be considered whistleblowers or do not need the confidentiality and protections our whistleblowing system confers (e.g. because they are a consumer, a shareholder or represent a firm reporting another firm), the Whistleblowing Team will refer them to the appropriate FCA channel to report their concerns. In most cases this will be the FCA’s Supervision Hub.
2. Do you manage a whistle-blower’s expectations when you receive a protected disclosure and how?
We manage whistleblowers’ expectations through two communication channels. We publish information about our whistleblowing processes on the FCA website[1], which provides more extensive information than we can provide here. You may therefore wish to refer to these pages separately. Additionally, our dedicated Whistleblowing Team of 16 Full Time Equivalent (FTE) team members, which is responsible for receiving whistleblower reporting and for liaison with the whistleblower throughout their FCA journey, is responsible for communicating key information to the whistleblower.
In summary, we manage whistleblower expectations by explaining:
- how we will protect the whistleblower’s presence, identify ,and information;
- what we are unable to do: provide legal advice or guidance (we advise whistleblowers to seek appropriate independent legal advice); accept reports that relate solely to employment disputes; share confidential information restricted by the Financial Services and Markets Act 2000, including confidential information about the supervision work we do and our enforcement investigations; provide fully transparent feedback at the point of case closure due to these restrictions; provide whistleblowers with exact timings for the completion of our review of their report; and
- that in rare circumstances, legal process may require the existence or identity of a whistleblower to be released in court and potentially to third parties, but that no such disclosure would be made without alerting the whistleblower.
3. What support and/or advice do you provide whistle-blowers with – in terms of the difficulty of making a disclosure and its potential repercussions – when they come to you?
Whistlebower's information is crucial to the FCA's efforts to reduce, stop and prevent harm and we rely on and are grateful to those who make whistleblowing disclosures to us. However, we acknowledge that it is not always easy for whistleblowers to speak up and report their concerns.
For this reason, and to ensure the FCA protects whistleblower identities appropriately, we have put in place a dedicated Whistleblowing Team of 16 FTE, responsible for liaison with whistleblowers and for ensuring the FCA handles their disclosures appropriately.
When they report to us, whistleblowers are assigned a dedicated member of the Whistleblowing Team as their case officer. The case officer can speak directly to the whistleblower about their concerns. Case officers are trained to listen to whistleblowers’ concerns in full, to ask questions to make sure they have the information needed to progress a report and to understand how to advise teams managing whistleblowing cases on appropriate protection of the whistleblower in any subsequent investigation or approach to a firm.
The Whistleblowing Team will always encourage a whistleblower to seek advice elsewhere (and will point whistleblowers in an appropriate direction) when they are unable to help whistleblowers with, for example, health concerns (including mental welfare), or legal advice in relation to their employment or other position. Typically, this would involve referring whistleblowers to Acas and/or the whistleblower charity, Protect.
If a whistleblower needs guidance about FCA rules and regulations to help them decide if they wish to make a disclosure, we refer them to our Supervision Hub for clarification, and explain that they should not discuss their whistleblower status with the Supervision Hub.
4. Where whistleblowing disclosures are deemed qualified and successfully taken to an employment tribunal – what types of action do you take on the companies involved in your remit?
Firms subject to the FCA’s rules on whistleblowing arrangements (see the FCA Handbook - SYSC 18[2]) that lose Employment Tribunal cases involving whistleblowing are required to inform the FCA of the outcome.
All such concerns we receive are subject to a detailed assessment by the relevant area of the FCA and, where appropriate, action is taken. Action that can be taken by the FCA includes, but is not limited to, desk-based reviews of processes and procedures, firm visits, setting out required actions for a specific Senior Management Function, s166 (Skilled Persons) reviews or Enforcement action, depending on the seriousness of the findings from the work undertaken.
5. What guidance do you provide to the companies you regulate regarding their personal whistleblowing policies?
The FCA Handbook (SYSC 18.3[2]) sets out rules and guidance for firms concerning appropriate and effective firm arrangements for the disclosure of reportable concerns by internal whistleblowers. The suitability of firms’ arrangements, as well as the related training and development of their staff and controls, are monitored as part of the FCA’s supervision of firms.