REC 2.5A Guidance on Public Interest Disclosure Act: Whistleblowing

This section is relevant to every UK recognised body to the extent that the Public Interest Disclosure Act 1998 ("PIDA") applies to it.

1. (1)

   The purposes of this section are to:

   1. (a)

      provide UK recognised bodies with guidance regarding the provisions of PIDA; and

   2. (b)

      Encourage UK recognised bodies to consider adopting and communicating to workers appropriate internal procedures for handling workers' concerns as part of an effective risk management system.

2. (2)

   In this section "worker" includes, but is not limited to, an individual who has entered into a contract of employment.

The guidance in this section concerns the effect of PIDA in the context of the relationship between UK recognised bodies and the FCA.2 It is not comprehensive guidance on PIDA itself.

Under PIDA, any clause or term in an agreement between a worker and his employer is void in so far as it purports to preclude the worker from making a protected disclosure (that is, "blow the whistle").

In accordance with section 1 of PIDA:

1. (1)

   a "protected disclosure" is a qualifying disclosure which meets the relevant requirements set out in part 4A of the Employment Rights Act 19963;

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2. (2)

   a "qualifying disclosure" is a disclosure, made in the public interest3, of information which, in the reasonable belief of the worker making the disclosure, tends to show that one or more of the following (a "failure") has been, is being, or is likely to be, committed:

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   1. (a)

      a criminal offence; or

   2. (b)

      a failure to comply with any legal obligation; or

   3. (c)

      a miscarriage of justice; or

   4. (d)

      the putting of the health and safety of any individual in danger; or

   5. (e)

      damage to the environment; or

   6. (f)

      deliberate concealment relating to any of (a) to (e);

   it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

1. (1)

   UK recognised bodies are encouraged to consider adopting appropriate internal procedures which will encourage their workers with concerns to blow the whistle internally about matters which are relevant to the functions of the FCA.2

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2. (2)

   In considering appropriate internal procedures, UK recognised bodiesmay find the guidance provided to firms in SYSC 18.2.2 G (2) and SYSC 18.2.2 G (3)1 helpful.

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In determining whether a UK recognised body is a fit and proper person, the FCA2 may have regard to any relevant factor including, but not limited to, how the UK recognised body and key individuals have complied with any relevant law (see REC 2.4.3 G (9)).