Sarah Ash
Group Partner*
Guernsey
What's changing?
Following Ministerial approval of the Jersey Employment Forum's recommendation to introduce a public interest disclosure (whistleblowing) regime, draft legislation is now being prepared. Employers should start planning ahead. Our previous article provides an overview of the proposed regime.The new regime will provide legal protection to Jersey based employees who report certain types of wrongdoing at work. This protection will allow whistleblowers to seek a remedy, typically compensation, via the Jersey Tribunal if they are dismissed or treated detrimentally as a result of whistleblowing. There is currently no whistleblowing regime planned for implementation in Guernsey but employers with cross-island operations and/or management structures outside of Jersey should ensure relevant staff are aware of the new protections for Jersey based employees.
Importantly, the Jersey regime is not expected to require employers to have a whistleblowing policy or specific processes for handling reports. In short, the new regime is about protecting whistleblowers after they raise concerns, rather than prescribing particular processes for facilitating concerns being raised or investigated.
Why policies still matter
Although not legally required, the Employment Forum strongly encourages employers to have a whistleblowing policy. JACS will provide a template to help businesses introduce or update their polices. The new regime will raise awareness of whistleblowing as part of good governance, and we expect to see a shift in what is considered best practice across the Channel Islands.Insights from our polls
To understand current practices, seminar attendees took part in live polls. Here’s what we learned:Policies in place: 88% of Jersey respondents and 100% of Guernsey respondents already have a whistleblowing policy. Existing policies will likely already include a commitment not to retaliate against whistleblowers, which aligns with the core principle of the new regime. Once the draft legislation is published, employers should review their policies to ensure they reflect the new rules and clearly explain when legal protection applies.
External hotlines: 80% of Jersey respondents and 58% of Guernsey respondents do not offer an external reporting hotline. While not required under the new regime, hotlines can be useful to support whistleblowers in raising issues and provide a means of raising concerns anonymously (though anonymous reports can be more difficult to investigate).
Public interest vs good faith
We explored whether the law should require that whistleblowers act in the public interest and/or in good faith to gain protection. A public interest test means the disclosure must be significant to the public and excludes personal complaints such as bullying from whistleblowing protection. A good faith test looks at the whistleblower’s motives.Most respondents supported both tests applying to the test for whistleblower status, but the Employment Forum concluded that only a public interest requirement should apply in Jersey. This reflects lessons from the UK, which removed its good faith requirement in 2013 because motives are often complex and excluding mixed or ulterior motives could deter valid reports.
Practical steps for employers
In preparation for the introduction of the new whistleblowing regime in Jersey, employers should consider taking the following steps:
- Review existing policies and identify gaps
- Assess current reporting routes and consider whether to add options such as external hotlines
- Decide whether to appoint a Whistleblowing Officer or Champion
- Plan whistleblowing training and integrate it into your schedule
- Clarify internal responsibility for implementation (often shared across HR, legal, compliance and risk)
- Consider budget implications
- Brief management on what to expect
Employers should keep an eye out for the draft legislation and our future seminars which we will run to cover the detail of the legislation when it comes out.
