Any attempt to prevent workers from reporting wrongdoing against employers by inserting language into their contracts prohibiting such reports would make those contracts illegal and unenforceable, according to proposed whistleblower protection legislation made public last week.
The Whistleblower Protection Bill, 2015, which is expected to come before lawmakers next month for approval, states that any employment agreement forcing a worker not to make a disclosure of suspected wrongdoing or to withdraw or abandon any such disclosure makes the contract “void and of no effect.”
The proposed legislation seeks to apply to both public and private sector jobs.
The long-contemplated whistleblower protections follow several attempts by the Cayman Islands government to create safeguards against various forms of retaliation for those who report either criminal or administrative wrongdoing in the workplace. Several Cayman laws, including the Freedom of Information Law and the defunct Standards in Public Life Law, sought to create various protections for whistleblowers but were rarely, if ever, used.
The government’s whistleblower proposal was prompted in part by a 2014 report from the complaints commissioner’s office that focused on allegations of wrongdoing within the civil service.
Former Complaints Commissioner Nicola Williams’s report identified a culture in which government workers were essentially living in fear, refusing to report obvious instances of wrongdoing they observed because of a belief that they, not the wrongdoers, would be punished.
“Examples were given of some civil servants only being allowed to take their [vacation] leave at the rate of one day per month, as a form of punishment for reporting wrongdoing,” the report noted at the time. “Confidential and personal information has also been leaked by way of retaliation.”
The legislation sets out a formal process for reporting wrongdoing to an as-yet-undefined “designated authority,” a person or a public body to be appointed by the Cayman Islands governor.
That authority would essentially be given the powers of a court in investigating reports of wrongdoing, called disclosures, and in monitoring compliance with the law, if it is passed. If it finds evidence of wrongdoing, the authority would either refer the findings to the person responsible for disciplinary proceedings, refer the matter to the commissioner of police [if criminal wrongdoing has occurred], or to the governor if the misconduct was committed by a high-ranking government official such as the police commissioner, for example.
Public and private sector employees cannot make frivolous complaints, or reports that are designed to embarrass their employers. Any report of wrongdoing will not qualify for protection against retaliation unless it is made “in the public interest,” according to the legislation. In addition, if it would normally be an offense to disclose information or if the information disclosed is considered legally privileged, the person disclosing it would not be protected.
Whistleblowers who disclose information deemed to be in the public interest are given specific protections in the bill against what is termed “detrimental action” – retaliation – by their employers. Detrimental action can include actions causing loss, injury, intimidation, harassment, discrimination, disadvantage or any adverse treatment.
The bill would make it a criminal offense to take detrimental action against an employee who makes a protected disclosure of wrongdoing. Prison terms of between two and five years upon conviction for doing so are contemplated in the proposal. Damages can be paid to an employee who has been victimized, and employers can be held vicariously liable for retaliatory actions taken by their agents or other employees against a whistleblower.
As an alternative, employees may report suspected wrongdoing to the government director of labor and pensions, who would refer the matter to the Labour Appeals Tribunal for review.
Public entity transfers
The proposed legislation also would give the government service the added option of transferring a worker who has reported suspected wrongdoing to another department in the service, if the person requests it.
In such a case, the government chief officer must believe that the worker has or will be retaliated against if they were to remain in the department where they reported wrongdoing.
The ability to transfer an employee is provided only to a public entity.
Employees who knowingly make a report of wrongdoing that is false, misleading or reckless, can be sent to jail.
If an employee conspires with another person to make a false report or contravene the Whistleblower Law, the offense is punishable by up to three years’ imprisonment.