Jersey's Draft Whistleblowing Law: A Practical Guide for Employers, Managers and Whistleblowers.

Who can be a whistleblower under the law?

The draft uses defined roles: the ‘discloser’ is the whistleblower, and the ‘subject’ is the person or body which the disclosure concerns.

The draft defines three categories of discloser:

• an employee ‘blowing the whistle’ on their employer;
• a police officer (who are not included as employees under the Employment Law) in respect of their work for the States of Jersey Police; or
• a worker in respect of a person/body that the worker is working for under a contract between the worker’s employer and that person/body. For example, a cleaner working for a cleaning company can ‘blow the whistle’ on the company whose offices they clean, even though they are not a direct employee.

What can someone blow the whistle about?

Wrongdoing is widely defined and focuses on matters of public interest rather than individual grievances. It includes criminal offences, failures to comply with the law (such as health and safety or data protection breaches), environmental damage, risks to the maintenance of law, deliberate concealment of such matters, and expressed intentions to act contrary to the law.

Wrongdoing may occur in Jersey or elsewhere. The draft law does not impose a time limit on when the alleged wrongdoing must have occurred. Historic, ongoing and anticipated wrongdoing may therefore all fall within its scope. The States may expand or amend the criteria of wrongdoing by Regulations.

How does an individual ‘blow the whistle’?

The draft sets out both the content requirements for a protected disclosure and the eligible recipients, who the draft law defines as ‘receivers’.

A protected disclosure must include details of the subject, the wrongdoing, the grounds for the discloser’s reasonable belief that wrongdoing exists or may occur, the grounds for believing that the disclosure is in the public interest, and confirmation that the disclosure is not made for financial gain.

A discloser must initially disclose this information to one of the following receivers:

• the subject of the protected disclosure;
• an elected States Member;
• Comptroller and Auditor General;
• Office of the Financial Services Ombudsman;
• Jersey Financial Services Commission;
• Health and Social Care Commission;
• Commissioner for Children and Young People;
• Information Commission;
• Commissioner for Standards; or
• Jersey Charity Commissioner.

Disclosure to the media is also possible but only after a substantially similar disclosure has first been made to the subject or another eligible entity, and only if making the media disclosure is reasonable in all the circumstances.

What are the duties of disclosure receivers?

The draft imposes practical obligations on those who receive protected disclosures. Receivers must promptly acknowledge receipt in writing, include a summary if the disclosure was made orally, take reasonable steps to keep the discloser’s identity confidential and investigate the disclosure.

The receiver must then take appropriate steps to investigate and address the issues raised and inform the discloser of the action taken or give written reasons for taking no action. All of this must be done within a reasonable period of time.

Receivers may refer a disclosure to another eligible entity or to the subject but must first obtain the discloser’s consent and consult the proposed recipient in advance. Although the draft law does not currently prescribe a specific statutory sanction for a receiver’s failure to investigate, organisations should not assume that inaction carries no risk. Failure to investigate may increase regulatory scrutiny, undermine governance and significantly increase the likelihood of litigation.

That should not, however, be taken to mean that organisations can safely ignore protected disclosures. A failure to investigate appropriately may increase regulatory scrutiny, expose governance failings and increase the likelihood of subsequent litigation.

In practice, organisations that fail to investigate protected disclosures adequately are more likely to face regulatory scrutiny or see concerns escalated externally.

Who is protected under the draft Law?

At the heart of the draft law is the principle that no one should be dismissed, selected for redundancy or subjected to less favourable treatment because they have raised concerns about wrongdoing.

Under the draft law, employees are protected from unfair dismissal and redundancy in retaliation by an employer.  An employee of the subject also has the right not to be treated less favourably compared to other employees. This protection explicitly extends to five groups:

• those who have made a protected disclosure;
• those who have expressed an intention to do so;
• those who have encouraged another to do so;
• those who have given information in support of, or relating to a disclosure; and
• those suspected or believed to fall into any of these groups.

What can a discloser do if their rights are breached?

An employee may complain to the Jersey Employment and Discrimination Tribunal about less than favourable treatment in breach of the draft law.

The subject of the disclosure may also be named as a respondent in a Tribunal claim. Additionally, if an employee of the subject acts unfairly towards the discloser, the law treats this as if the subject did it themselves. However, an employer may avoid liability if they can show they took all reasonable steps to prevent the unfair treatment.

Dismissal and redundancy linked to whistleblowing is categorised firmly as automatically unfair if the reason or main reason is that the employee made, intended to make, encouraged, or supported a protected disclosure. Under the draft law, whistleblowing protection is a day‑one right, without the usual 12‑month qualifying period. Compensation levels for unfair dismissal are governed by existing employment legislation, separate from the whistleblowing compensation cap for less favourable treatment claims.

The remedies available mirror those available under Jersey’s existing employment and discrimination legislation. Where a complaint is well‑founded, the Tribunal may declare the parties’ rights, award compensation for financial loss and for hurt and distress and make recommendations to prevent or reduce adverse effects on the complainant.

Compensation for financial loss must not exceed £30,000, compensation for hurt and distress must not exceed £30,000, and the total combined award must not exceed £30,000. Where there is more than one respondent, compensation may be apportioned on a just and equitable basis.

The draft law states that the Minister for Social Security must review the compensation limits no later than three years after the law comes into effect, and at least every three years thereafter.

Practical takeaways for employers and managers

• Prepare before the law comes into force.
  • Organisations should review existing whistleblowing policies and reporting procedures now, rather than waiting for the legislation to be enacted. Existing grievance procedures may not adequately address protected disclosures or the statutory obligations placed on disclosure receivers.

• Identify appropriate disclosure receivers.
  • Consider who within the organisation should receive protected disclosures. Those individuals should have sufficient authority, independence and training to investigate concerns objectively, maintain confidentiality and comply with the draft law’s procedural requirements.
• Train managers to recognise protected disclosures.
  • Managers should understand that not every workplace complaint amounts to whistleblowing but equally should avoid dismissing concerns too readily as a personal grievance. Identifying whether a concern may amount to a protected disclosure at an early stage will assist in ensuring the appropriate procedures are followed.
• Maintain clear written records.
  • Keep records of acknowledgements, investigations, decisions and communications with the whistleblower. If the handling of a disclosure is later scrutinised, records created at the time are likely to be important evidence of the steps taken.
• Review disciplinary and redundancy decisions carefully.
  • Where an employee has made, intends to make, or is suspected of making a protected disclosure, any subsequent disciplinary process, performance management or redundancy decision should be carefully assessed to ensure it is supported by legitimate business reasons and appropriate documentation.
• Provide appropriate governance oversight.
  • Particularly in regulated businesses, periodic reporting to senior management or the board (with appropriate safeguards for confidentiality) can assist organisations in identifying recurring issues, monitoring organisational risk and demonstrating a culture of effective governance.
• Calibrate responses to disclosures.
  • Focus on whether the disclosure concerns public‑interest wrongdoing, whether the statutory requirements for a protected disclosure have been met, and whether referral to another eligible entity is appropriate.  Any referral requires the discloser’s consent and prior consultation with the proposed recipient.
• Manage dismissal and redundancy risk.
  • Any dismissal or redundancy connected with whistleblowing should be treated as presenting a significant legal risk, given the draft law’s automatic unfair dismissal provisions.
• Remember the statutory defence.
  • Employers may avoid liability for acts of less favourable treatment carried out by employees or agents if they can demonstrate that they took all reasonable steps to prevent such conduct. Appropriate policies, training and prompt investigation are therefore likely to be important.
• Understand the potential financial exposure.
  • Compensation for less favourable treatment claims is currently capped at £30,000, although dismissal claims continue to be governed by the existing Employment Law provisions. Organisations should nevertheless view whistleblowing disputes as presenting wider legal, regulatory and reputational risks.

Practical takeaways for whistleblowers

• Consider whether your concern falls within the scope of the legislation.
  • The draft law is intended to protect disclosures concerning wrongdoing that is in the public interest, rather than personal employment grievances. Before making a disclosure, consider whether your concern falls within one of the statutory categories.
• Follow the statutory reporting process.
  • The draft law specifies who may receive a protected disclosure. Following the prescribed process is more likely to ensure that the statutory protections apply than making an immediate disclosure elsewhere.
• Keep copies of relevant documents.
  • Retain copies of your disclosure, supporting documents and any correspondence relating to it. These records may assist if concerns later arise regarding retaliation or less favourable treatment.
• Be aware of the time limits.
  • Although there is no time limit on when the underlying wrongdoing occurred, claims arising from less favourable treatment must generally be brought within eight weeks of the relevant act, subject to the Tribunal’s limited discretion to extend time.
• Exercise caution before approaching the media.
  • The draft law permits disclosure to the media only in limited circumstances and generally only after a substantially similar disclosure has first been made to an eligible recipient. Individuals should therefore consider carefully whether the statutory requirements have been met before taking that step.

Conclusion

The draft law introduces a structured framework for protected disclosures across Jersey’s public and private sectors, with clear procedures for raising routes to raise concerns, defined duties for those receiving them and robust protections against dismissal and unfair redundancy. It also preserves flexibility through guidance, review mechanisms, and the scope for future extensions.

Although the draft law has not yet been enacted, organisations would be well advised to begin reviewing their whistleblowing frameworks now. Early preparation, including appropriate policies, training and reporting procedures, will place employers in a stronger position to comply with the new regime and reduce the risk of disputes once the legislation comes into force.

How can Baker & Partners help?

Baker & Partners’ team have extensive experience in implementing whistleblowing reporting frameworks, investigating whistleblowing reports, drafting policies and procedures and training boards and employees on the topic.

Reach out to Barry Faudemer for more information.