Whistleblowing policies: more than a box-ticking exercise

There are many useful lessons for employers in a recent decision on whistleblowing in Banerjee v Royal Bank of Canada.  An employment tribunal found that Mr Banerjee, an emerging markets FX trader for Royal Bank of Canada (RBC), ostensibly dismissed for poor timekeeping, was, in reality, dismissed for whistleblowing.

Mr Banerjee raised several issues over a number of months including a concern about the bank’s tick-box culture towards regulatory compliance.  Following a town hall meeting aimed at encouraging employees to report wrongdoing at which the Global Head of Fixed Income Currencies and Commodities stated that “Don’t ask, don’t tell - will not be tolerated” Mr Banerjee emailed him highlighting his concerns.  These included that employees who were required to attest annually that they had read the lengthy policies vital for compliance normally clicked “agree” within three minutes of logging on having not read anything. Mr Banerjee was concerned that this tick-box exercise would result in a failure to comply with fundamental regulatory requirements which was dangerous for the bank’s shareholders, employees, clients and the wider financial system. 

However, instead of investigating the concerns RBC deliberately shut him down and began to look for a way of dismissing him.  His poor timekeeping had been a long-standing issue about which no disciplinary action had ever been taken and the tribunal found that this was used as an opportunity to dismiss him.  The tribunal held that the main reason for his dismissal was his public interest disclosure. 

This decision shows that having a whistleblowing policy in place is not enough on its own, in this case the tribunal described the RBC policy as “empty words”, it should be implemented through being acted on.  It is also a reminder that however forthright and “enervating” a whistleblowing employee is, the employer should investigate any genuine concerns raised or risk a successful claim and unlimited compensation.  Mr Banerjee was earning £1million a year and is looking for several million in compensation for career loss.  In addition, those in the financial services sector are subject to rules which include notifying the regulator (in this case the FCA) of any whistleblowing claim lost at tribunal.

The tribunal judge recognised that whistleblowers themselves are often a thorn in management’s side and that it takes a certain kind of personality to be a whistleblower.  While it is easier to stay silent for a quiet life, this is exactly what whistleblowing policies are designed to discourage and it is all the more important not to ignore a whistleblower’s  genuine concerns.  RBC has said it will appeal. 

For more information, please contact Emma Bartlett.