First Whistleblower Law takes effect

Nearly four years after former Complaints Commissioner Nicola Williams decried a culture of fear within the Cayman Islands government service, the British territory’s first law solely aimed at protecting whistleblowers – those who report wrongdoing within organizations – takes effect.

The provisions of the Whistleblower Protection Law (2015) come into force Feb. 1 – about two and a half years after lawmakers passed the bill, consolidating various earlier legislation which sought to offer similar protection and which was largely viewed as ineffective by Ms. Williams in her extensive 2014 report on the issue.

The job of receiving and reviewing whistleblower reports falls to the newly created Ombudsman’s office, which will add the responsibility to its three-person team already tasked with handling complaints made against government agencies. The whistleblower reports will be handled separately from civilian complaints made against police officers, Ombudsman Sandy Hermiston said Tuesday.

Ms. Hermiston said her earlier experience in Alberta, Canada with setting up a whistleblower program showed that there likely will not be an abundance of complaints coming in right away. If a flood of complaints does suddenly come in and more help is needed, staff will be hired, she said.

“I have confidence that there are a lot of people here in Cayman [who] are trying to do the right thing,” Ms. Hermiston said. “We need to work towards a culture of accepting or encouraging people to raise problems or concerns.”

The first step, Ms. Hermiston said, is not necessarily running to the Ombudsman’s office with a list of complaints. An effective whistleblowing process, similar to a complaints process, should be able to resolve complaints internally.

To that end, the Cayman Islands government has set up its own hotline for reporting fraud or wrongdoing by its employees, separate from the Royal Cayman Islands Police Service or the ombudsman’s office.

The hotline reporting service, operated by local accounting firm KPMG, allows anyone to report incidents of fraud or to “blow the whistle” on suspected unethical acts or maladministration within the government. Tips can be phoned in to a 1-800 number or emailed to a secure address that KPMG operates.

“Whistleblowers who use these platforms will have complete anonymity and will therefore be protected,” a government statement noted. “All claims or allegations made will be investigated by the Internal Audit Service.”

How to ‘whistleblow’

Anyone working in the Cayman Islands, whether in government or the private sector, can make a report or disclosure of suspected wrongdoing to the ombudsman’s office or to a practicing attorney. The Whistleblower Law requires all such complaints be kept in strictest confidence.

The ombudsman’s office will essentially be given the powers of a court in investigating reports of wrongdoing and monitoring compliance with the law. If evidence of wrongdoing is found, the ombudsman can either refer the matter to the person responsible for internal discipline [in administrative cases], refer to the commissioner of police [if criminal wrongdoing has occurred] or to the governor [if the wrongdoing was committed by a high-ranking government official].

The legislation seeks to prevent public and private sector employees from making frivolous complaints or reports that are designed to embarrass their employers. Reports of wrongdoing will not qualify for protection against retaliation unless they are 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 get specific protections in the law 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 legislation makes it a criminal offense to take detrimental action against an employee who discloses wrongdoing. The offense carries a penalty of a prison term of between two to five years.

Damages can be paid to an employee who has been victimized, and employers can be held liable for retaliatory actions taken by their agents or other employees against a whistleblower.

The legislation gives the government service the added option of transferring a worker who has reported suspected wrongdoing, to another department 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.

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