Protect with the support of Slater & Gordon Lawyers has launched Silence in the City 2 (SITC2 2020), a new report examining whether whistleblowing culture within financial services organisations has improved following the introduction of Whistleblowing Rules by the Financial Conduct Authority (FCA). This blog will examine what employers can learn from the research.
Background: Whistleblowing Rules in the Financial Services
Since 7 March 2016, FCA has required regulated organisations to take a number of steps to develop their whistleblowing arrangements. SYSC 18 (also known as “the Whistleblowing Rules”), sets out minimum requirements for firms in a number of areas including the form internal whistleblowing arrangements should take as well as providing non-binding guidance to aide in the implementation of the rules. This research examined whether rules have made it easier for whistleblowers to raise concerns, improved the response to the wrongdoing raised and whether whistleblowers are treated better in the process.
For background here is a summary of the relevant rules for this research:
- The appointment of a whistleblowers’ champion to oversee the effectiveness of the whistleblowing arrangements (SYSC 18.4.4)
- Introduction of internal whistleblowing arrangements to handle all types of reportable concerns
- A requirement to provide training for all staff and for managers receiving concerns (SYSC 18.3)
- Communication to UK-based employees about the FCA and PRA whistleblowing services (SYSC 18.3.6)
Protect and Slater & Gordon conducted Silence in the City in 2012 (SITC 2012) to uncover the true experience of whistleblowing in the financial services sector. Our new Silence in the City 2 report (SITC2 2020) examines the lived experience of 352 whistleblowers who approached Protect for advice between January 2017-2019. SITC2 2020 directly compares these findings to those of the SITC 2012 report and examines whether whistleblowing culture has improved post implementation of the Whistleblowing rules.
Culture Change
The research has shown some real culture change in the sector which includes:
- Greater trust and use of internal whistleblowing arrangements: Use of internal arrangements (including disclosures to line managers, Whistleblowing Champion, Directors, Chief Executive) has increased by 15% since our research in 2012, jumping from 78% (from SITC 2012) to 93% (SITC 2 2020).
- Increased awareness of internal arrangements: 93% of whistleblowers were aware of their employer’s whistleblowing policy and 78% said they had either used the policy or were considering using it. This may be indicative of training that firms are required to provide to staff on how and where to blow the whistle (SYSC)
- Whistleblowers are more persistent in raising their concerns: We saw a 10% increase in individuals trying to raise their concerns a second time if needed.[1]
Another aspect of the research that should give firms pause for thought is the rise in discrimination and harassment concerns being raised through the whistleblowing channels. 19% of the disclosures made related to legal or regulatory breaches and discrimination or harassment issues which made up 5% of the concerns raised, in 2012 discrimination and harassment did not feature at all in the research. We believe this could be a result of the increased profile such issues now have thanks to the #MeToo movement and steps that the FCA has taken in treating sexual harassment as a conduct issue under the SMCR regime[2]. It also reflects a situation where it might be more effective to use whistleblowing arrangements rather than grievances where the whistleblower is either a witness to the behavior or if they are victim but part of a wider cultural problem in their organisation.
The Gap between policy and practice
While SITC2 2020 demonstrates that firms have taken steps to put in place whistleblowing arrangements, the findings clearly show the void between what is written in the policy and the response from the firm.
- 7 out of 10 whistleblowers experienced some form of victimisation: this includes bullying and harassment from managers or co-workers, suspension, dismissal or resignation
- Most employers took no action to resolve victimisation: the research also shows that when the victimisation was reported to the employer, over half took no action (58%) and almost a quarter rejected the complaint (24%)
- A third of whistleblowing concerns raised were ignored: in 33% of cases, the whistleblowers stated that the wrongdoing they raised was ignored by the employer.
SITC2 2020 mirrors findings found in the US where a recent study by George Washington University and the University of Utah examined nearly two million whistleblower reports from internal whistleblower systems. Report author Kyle Welch said, “If you have more reports, it is a good sign. It is very easy to lower reports, just change the hotline phone number and don’t tell anyone. The question you should ask when you have more reports is: Do we have enough resources to investigate the volume of information we are getting?” Welch also advises companies to “benchmark your system for the volume of reports you receive. The only way to know if you are receiving enough reports is to get a benchmark study to see how similar firms in your industry did over the same time.”[3]
By failing to properly engage with the victimisation of whistleblowers, some of the positive cultural change we have seen around the use and trust of internal whistleblowing arrangements has been greatly undermined.
Conclusion – 4 things firms should consider doing
The advent of the whistleblowing rules has brought about positive change in the financial services sector, but firms have a long way to go to meet best practice in handling whistleblowers. It is important that senior leaders, championing a firm’s whistleblowing arrangements, put themselves in the shoes of a whistleblower and think about the protection and support they would want as a whistleblower. As firms move to bridging the gap between policy and practice, there are for things that they can consider doing:
- Treat complaints of victimisation seriously and consistently: adopt a zero-tolerance approach to the victimisation of whistleblowers and ensure that complaints are dealt with through a consistent process. In larger organisations, you may want to address all complaints of victimisation through one central function (e.g. the whistleblowing team or HR) to ensure consistency. Make sure managers across your organisation, HR, the Whistleblowing champions are trained and are aware of what constitutes victimisation.
- Discrimination and harassment issues maybe raised via whistleblowing arrangements: HR departments and managers need to be aware that whistleblowers appear to be using whistleblowing arrangements to raise discrimination and harassment issues so they must be able to spot when there is a cultural problem within a department or where there is pattern of behavior from one particular individual.
- Benchmark and review: following the Whistleblowing Rules will not ensure firms have effective whistleblowing arrangements, review and benchmarking of arrangements will show gaps in way whistleblowers are dealt with in the whistleblowing system. Protect has developed a Benchmark framework to help your organisation reach best practice when it comes to whistleblowing standards.
- Being proactive in communicating to whistleblowers: Whistleblowers feel ignored, communicate and seek feedback from whistleblowers telling them what action has been taken on the concerns and asking they feel victimised for raising the concerns. Being proactive in communicating with whistleblowers is key.
[1] 20% raised their concerns a second time in SITC1 while it stands at 30% in SITC2.
[2] https://www.parliament.uk/documents/commons-committees/women-and-equalities/Correspondence/180928-FCA.pdf
[3] https://www.forbes.com/sites/josephbrazel/2020/06/11/study-provides-new-insights-about-internal-whistleblowing/