18 Apr 2019
Whether it’s linked to a case of whistleblowing, a problematic work culture or discrimination, the decision to sue an employer is never easy. For some compliance officers, however, there may come a point in which legal action is the only recourse available to them to expose wrongdoing, protect their professional reputation or stand up for their rights.
But how do you know when you’ve reached that point, and what should you do next?
Know your rights
“It is not uncommon for financial services professionals to be victims of unlawful discrimination by their employer or colleagues—for example, sex, race or age discrimination. A typical scenario is when a woman returns after maternity and finds their clients and job scope severely reduced,” says Ged Nichols, general secretary of Accord, an independent UK-based specialist trade union for financial services staff.
This is precisely what happened to Jagruti Rajput, a senior compliance officer at Commerzbank in London. In October 2018, Ms. Rajput won her case against the bank for sex and maternity discrimination. The court ruled that the bank had failed to fairly consider her for a promotion, and had used her maternity leave as an opportunity to pass on significant elements of her job to a colleague.
Another recent lawsuit by an employee against Commerzbank was less successful. Najam Khan, the bank’s former head of corporate finance and Middle East Islamic finance in Dubai, claimed that during his time with Commerzbank he was told to “shut up” about compliance issues, harassed and eventually fired for reporting his concerns about failures to adequately separate the private and public sides of the business.
“Financial services professionals may also well see wrongdoing in the organisation and as a result ‘blow the whistle’. If the individual is then treated worse—for example is dismissed because they blew the whistle—they will have a whistleblowing claim which is potentially valuable with uncapped compensation,” says Nichols.
Whistleblowing law is complicated
It is important for employees to gather as much information about their legal rights before taking any action, according to Nichols. In cases that stem from exposing wrongdoing, employees should first ensure that their potential complaint will be covered under protections for whistleblowers.
Mr. Khan ultimately dropped his whistleblowing case against Commerzbank and agreed to pay a share of Commerzbank’s legal costs.
“The main area of vulnerability is that often compliance officers, if simply doing their job, are not protected under the law designed to protect whistleblowers. The compliance officers may investigate the whistleblowing complaint, but that will not necessarily make them ‘whistleblowers’ with all the protection that accrues to whistleblowers,” says Nichols.
Wendy Addison, CEO and founder of SpeakOut SpeakUp Ltd and a whistleblower herself, agrees that it is crucial to seek legal advice as early as possible.
It’s also very important for employees reporting suspected wrongdoing to be clear about whether they are reporting formally or informally, Addison explains.
“Individuals speaking up are often pushed from the ‘informal reporting of malfeasance’ frame into the ‘formal whistleblowing’ frame, unknowingly and whilst acting in their professional capacities,” Addison says. “Once in the ‘formal whistleblowing frame’, they are at the mercy of how the organisation perceives whistleblowers and whistleblowing in addition to being at the mercy of the ambiguous interpretation of whistleblowing legislation.”
“There is a risk for any employee who becomes a whistleblower. Most individuals do not set out to become a whistleblower, it’s certainly not an aspiration. Individuals speak up and out to halt what they believe is an unethical practice,” she says.
Going to court should be a last resort
Would-be litigants should also keep in mind that most companies will be able to mount a strong defence to any lawsuit, in part because of the potential reputational and monetary costs they can incur from court rulings, according to Nichols.
“It is also not uncommon for employers to argue that poor treatment of the employee is for some other reason and, therefore, it is important that the individual receives advice from the Union at the outset. Otherwise it can be a lonely battle against a much more resourced adversary,” says Nichols.
Where possible, employees should try to settle a case and avoid going to court altogether, according to Addison.
“A benefit of an out-of-court settlement is that confidentiality provisions and references can often be obtained, whereas even if successful, an Employment Tribunal will not be able to order the employer to provide an agreed reference or take any other steps to protect the employee’s reputation,” she says.
According to Nichols, factors that employees should take into account before initiating legal action against their employer include:
- Time limits: Some claims need to be presented within a specific time period. If that time period has expired, seeking legal redress is likely to be very difficult and may not ultimately succeed.
- Eligibility: Employees should also check that they have the requisite length of service to bring the claim that they wish to pursue. Some claims, such as ordinary unfair dismissal, require the employee to have been employed for two years before they are eligible to bring the claim.
- Cost: Bringing a legal case can be incredibly expensive, especially if the case is prolonged and/or complex. Employees should carefully consider how to fund their legal action, including planning for a worst-case scenario in which the suit may be dragged out over a long period of time.
If you do end up having to take a case to court, however, Addison has some practical advice.
“Maintain a detailed record of all events that may follow as a result [of reporting],” she says. “Bring an ally with you, and use secure communications channels. Resist using any technology owned by the organisation, and resist sharing anything on social media platforms.”
It’s also important to request all historic job appraisals from HR, according to Addision.
“If you are dismissed down the line for ‘poor performance’, you will have a record of any positive job appraisals and performance and will be able to utilise this to prove that the act of whistleblowing was the cause for your dismissal and not the fabricated ‘poor performance’,” she advises.
Above all, she says, “be prepared for a tough ride.”
Melbourne-based Elise Thomas has a background in international affairs and a strong interest in financial crime, data and technology issues.
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