Guidelines
Guidelines for dealing with Whistleblowing Calls under the Public Disclosure Act 1998 ("PIDA")
The FSA's approach to whistleblowing
The FSA has issued guidance on the effect of PIDA and how firms may consider setting up appropriate internal procedures which will encourage workers with concerns to blow the whistle internally about matters which are relevant to the functions of the FSA. It is the FSA’s policy to encourage potential whistleblowers to use the whistleblowing procedures in their own workplace, but:
- if there aren’t any, or
- if any such person does not feel able to do that, or
- has done so and is concerned by the response, or lack of it
then they may contact the FSA’s Whistleblowing Unit.
Legal advice
The FSA Whistleblowing Unit cannot give direct legal advice on PIDA to a whistleblower. If anyone requires such advice, then they should be referred to Public Concern at Work or to their own solicitor.
Initial assessment of information
Having taken a call or received a written communication from a whistleblower, the Whistleblowing Unit needs to decide whether the information received is likely to fall within the remit of PIDA and, if so, therefore be treated as such in accordance with PIDA guidelines. The Whistleblowing Unit should also consider whether the FSA is the appropriate prescribed body, or whether there may be another agency which may have an interest in the information. If so, then the Whistleblowing Unit would arrange either for the whistleblower to contact that agency or for the information to be passed on by the FSA. The Whistleblowing Unit would make best efforts to obtain the consent of the whistleblower prior to onward disclosure (although the decision on this would be at the discretion of the FSA, whether or not the whistleblower consents).
Initial contact with a whistleblower
The FSA would expect the vast majority of whistleblowing information to be provided in writing. Any interview with a whistleblower would be rare, and if it should occur then it would be attended by a minimum of two FSA staff, except where the purpose of the meeting is to collect documentation or similar, or where circumstances make it unavoidable.
Confidentiality
At first contact with the whistleblower, it should be explained that the FSA would be unable to supply any more than very limited feedback to the whistleblower as to the outcome of the provision and investigation of information. It should also be explained that the FSA would seek to protect the whistleblower’s identity from the entity the disclosure was about, but that it cannot guarantee anonymity. This is because there may be legal or operational reasons that cause the identity to become known. For instance, the FSA may become aware of a criminal activity and would then be obliged to report the matter to the police, or the nature of any FSA enquiries may lead the firm to deduce the identity of our source.
Disclosure of identity of a whistleblower internally
The identity of the whistleblower should be protected as much as possible, even within the FSA. It should not be passed routinely to other areas of the FSA, although as an investigation progresses then it may well be that disclosure is necessary.
Disclosure of identity of a whistleblower externally
Normally, disclosure of a whistleblower’s identity externally should not occur. However, it may become necessary to disclose outside the FSA. In these circumstances, reasonable efforts should be made to obtain the consent of the whistleblower to such disclosure. If this is not obtained, then it remains within the FSA’s discretion to make the disclosure (with the whistleblower being informed accordingly). In some circumstances, likely to be exceptional, it may be appropriate to disclose without any prior consent or notice to the whistleblower, but the FSA will always take into account the need for sensitivity towards the whistleblower’s position.
Recording of information
All information obtained from a whistleblower must be recorded onto an intelligence database with limited access arrangements, eg Document Manager. Such information is graded so that it is clearly identifiable as coming from a whistleblower and should not be disclosed without reference to the Whistleblowing Unit.
Non-PIDA cases
If it becomes clear that the whistleblower is not covered by PIDA, then the information received should be passed to the relevant areas within the FSA, or to any other appropriate agency. The whistleblower should be informed, and the fact of transmission should be recorded – but there is no further duty on the Whistleblowing Unit to monitor its progress.
Investigation
If it is decided that the whistleblower is covered by PIDA, then the matter should be investigated bearing in mind the provisions of PIDA and referred to the relevant areas within the FSA for further investigation on that basis.
Timing issues
With regard to consideration and referral of information received from a whistleblower:
- all written material received should be read within 24 hours of receipt, even if only skip-read in cases of longer documents, in order to ascertain whether serious regulatory issues arise; and
- where such issues are identified, they should be reported direct to the Manager or HoD responsible for the Whistleblowing Unit for four-eyes consideration and decision on immediate/early referral;
- in all other cases, information should be passed to the relevant FSA area within ten working days.
FSA's expectations of a whistleblower
In no circumstances should the Whistleblowing Unit encourage the whistleblower to attempt proactively to obtain any further information.
Internal relationships within the FSA
Where a PIDA case is passed to another area in the FSA, guidance should be provided on PIDA provisions if required. That other area should nominate a contact person to the Whistle blowing Unit and give feedback to the Whistle blowing Unit on action taken. If the area to which the matter has been referred by the Whistle blowing Unit is considering encouraging (either explicitly or implicitly) the whistleblower to provide additional information (i.e. go beyond mere clarification of the information already provided) there is a risk that this action might infringe privacy rights. Advice can be obtained from GCD - RS on how to manage this risk legally.
Continuing contact with a whistleblower
In every case, there should be an internal agreement within the FSA as to the continuing contact person for the whistleblower. In certain cases, it may be appropriate for the purposes of an investigation for a supervision or enforcement officer to be that contact. It is the responsibility of the contact person to notify the whistleblower to that effect.
Feedback to a whistleblower
The FSA will not normally disclose whether it is or is not investigating a particular matter, or reveal any of the findings or conclusions of any investigation, and that means even to the person who raised the matter with us. In many cases, statutory restrictions on the disclosure of information obtained by the FSA in the course of exercising its functions are likely to prevent such disclosure. The FSA will not disclose confidential information without lawful authority. However, the FSA appreciates that the whistleblower will be anxious to know what has happened and would expect, subject to the constraints mentioned, to indicate to the whistleblower whether or not the FSA considers that the information has been relevant to our regulatory functions.
Questions in relation to these guidelines
Any queries in relation to these guidelines should be addressed in the first instance to the FSA Whistle blowing Unit.