Protection of whistleblowers working overseas
In Smania v Standard Chartered Bank [2015] ICR 436 the UK employment appeal tribunal held an employee in Singapore blowing the whistle on a Singapore branch of a UK regulated bank was not protected under English whistleblower laws. Importantly though, in that case he had no positive duty to report malfeasance or malpractice.
Earlier cases recognise there is a residual group of people abroad that should be protected. The list of types of whistleblower is acknowledged by the courts to be non-exhaustive.
Solicitors working abroad but nevertheless regulated by the Solicitors' Regulation Authority are one of the very few groups of people who are physically abroad yet have a positive duty to report the activity of a peer to a UK regulator. Failure to do so could lead to committing professional misconduct, striking off, a fine or indeed breaching a client or employment retainer into which duties of conduct are imported. These duties can be enforced against them many years in the future (e.g. when corrupt officers of their client or employer have moved on).
There are many such solicitors in Singapore and Hong Kong with that duty to report. Yet we have no local whistleblower protection. In Hong Kong some solicitors improperly retaliate and attempt to injure those who they think will or have reported them.
Victimisation. With the consent of the solicitor’s employer. This can be to suppress evidence of a solicitor's misconduct or to force someone to retract allegations under penalty of threatened bankruptcy or even for financial incentive.
This scenario is entirely distinguishable from Smania and will shortly be considered by the UK employment tribunal.
The solicitors who engage in such retaliatory conduct are, it is alleged, acting unprofessionaly and the Authority has made clear if they are disciplined in the UK retaliation will be viewed very seriously. In this way, the regulatory regime is running ahead of legal protection.
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Op-Eds are the personal opinion of the author.
Samantha Bradley can be contacted at https://www.linkedin.com/in/samantha-bradley-94773241/
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