FCA dismissed whistleblower’s ‘extreme retaliation’ claims with legal mistake
The City watchdog dismissed complaints from a whistleblower and allegedly left them open to a barrage of retaliation from their former employer after officials wrongly interpreted the law, City PM has learned.
In an exchange of emails seen by City A.M., a whistleblower to the Financial Conduct Authority called on the regulator for protection from their former employer after blowing the whistle on the firm in 2017.
The person says they “lost count” of how many times they called on the FCA to step in, and emailed the watchdog’s chief Nikhil Rathi directly in March last year warning him of a campaign of “extreme retaliation” being waged by the company, according to the messages.
An official dismissed the calls in March this year partially on the grounds that the complainant had already waived their anonymity and was “no longer entitled to the protections offered under the Public Interest Disclosure Act 1998” – the laws governing whistleblowing.
However, the judgement has no basis in law, meaning the person’s pleas were wrongly dismissed by the watchdog. Speaking with City PM on condition of anonymity, the whistleblower has now claimed they had been left exposed and vulnerable to retribution from the firm.
“The FCA has treated me with contempt and didn’t protect me as a vulnerable whistleblower, even though I filed many retaliation reports and pleaded for their intervention,” the person said.
The whistleblower claims they were sacked from their job after raising concerns in 2017 and have now received legal threats from the company’s lawyers.
There is no such clause relating to anonymity under PIDA laws, but workers are given the “right not to be subjected to any detriment” from their employer on the grounds that the worker has made a “protected disclosure”.
The firm in question was slapped with a fine by the FCA, and the regulator admitted in a letter to the whistleblower in June this year that the information passed over had a “significant impact” on the regulator’s approach to supervising the firm.
However, the complaints will raise questions over the watchdog’s handling of sensitive whistleblowing cases.
After being approached for comment by City A.M. yesterday, the FCA formally apologised to the whistleblower and claimed that the mistake was linguistic and had no direct impact on the actual protections offered to the person.
“In responding to a complaint we made a mistake in the language used. The wording was never part of our policy and the error had no impact on actual whistleblower protections under PIDA,” the FCA said.
The person later filed a complaint with the Financial Regulators Complaints Commissioner (FRCC). While the body ultimately found in August that the FCA handled the person’s complaints correctly, it did not rule on the FCA’s interpretation of PIDA.
“The Commissioner cannot provide interpretations of PIDA under the Complaints Scheme, and did not do so in this report. The Commissioner cannot review whether the FCA has interpreted PIDA correctly, and did not do so in this report,” it said.
The mistake from the FCA has triggered a backlash from campaigners who said the regulator has created a “dangerous” environment for whistleblowers in the City.
“If the FCA has provided this information to an ombudsman [the FRCC] it’s goes to show that this is how the FCA understands the law and why whistleblowers are being mistreated by the regulator,” Georgina Halford-Hall, chief of campaign group Whistleblowers UK, told City PM
“What it demonstrates is just how dangerous it is for whistleblowers to call out concerns across City.”
The criticism will add to the woes of the regulator today however after it was yesterday embroiled in a data protection scandal.
A report by The Times revealed that the Information Commissioner’s Office had concluded that the FCA had “infringed their data protection obligations” after a former employee at the watchdog complained about the policy.
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