[Banking] The FCA and PRA launch new rules on Whistleblowing Programmes in banks and other deposit-takers

Background

In 2013, the report of the Parliamentary Commission on Banking Standards expressed concern at the lack of whistleblowing in the banking sector. The report made a number of recommendations including, for the first time, a mandatory requirement for banks to have whistleblowing programmes.

In May 2015 the FCA/PRA consulted on the proposed changes and received 50 responses of which 15 responses came from regulated firms and the rest from trade and professional bodies.

What the new rules require

These new whistleblower rules should be considered in conjunction with the FCA/PRA final rules on improving individual accountability published on 7 July 2015. In particular, the new whistleblowing rules require a designated Non Executive Director to be personally responsible (and accountable) for the management of the WBP.

• The appointment of a Whistleblower Champion (usually a NED)
• Institutions must formalise whistleblowing arrangements
• A report must be made to the Board annually on the effectiveness of the WBP
• Employees must be informed of the WBP and their right to blow-the-whistle directly to the FCA or PRA
• UK based appointed representatives and tied agents must be informed of their right to blow-the-whistle to the Regulators
• Employment contracts and settlement agreements must expressly confirm the individual’s right to blow-the-whistle
• Firms must inform the Regulator is they lose a whistleblowing Employment Tribunal

What the new rules do not require

The new rules do not implement a whistleblower reward scheme (as in the USA). This position was adopted by the Regulator in 2012 following a review of whistleblower reward programmes abroad.

The new rules do not place a formal requirement on staff of regulated firms to blow-the-whistle.

The FCA/PRA consulted on extending the new whistleblower rules to the UK branches of overseas banks. The Regulators have decided not to impose the new rules on these banks, but has said that it will further consider, and further consult, on doing so in the future.

Although these new whistleblower rules apply to deposit-taking institutions, the Regulators have made it clear that they will consider extending the rules to all regulated firms in due course and that firms not currently captured by the new rules should, nevertheless, consider the whistleblowing rules as “non binding guidance for all other firms we supervise”.

Next steps

Banks should already be conducting mapping exercises in order to prepare ‘Statements of Responsibilities’ under the new Senior Managers Regime. Consideration should also be given as to how the WBP ‘fits’ with the new Certification Regime and Conduct Rules.

Although the whistleblowing rules do not become effective until 7 September 2016, The ‘Whistleblower Champion’ must be identified by the implementation date for the Senior Managers Regime (7 March 2016). Between these two dates the Whistleblower Champion will be responsible for ensuring implementation of the new whistleblower rules. This is where Mazars can help.

Mazars has experience in advising clients on creating, embedding and testing the effectiveness of Whistleblowing Programmes. This includes ensuring that whistleblower policies and procedures are robust, compliant and effectively communicated. Please contact Howard Shaw to discuss your needs.