2020 is upon us and the financial industry from the FCA to the Banks continue to sing ever louder from the same hymn sheet; ‘Zero tolerance for wrongdoing’, ‘we must take responsibility’, ‘we must be held accountable for our actions’. Indeed, all are equally vocal in their support of whistleblowers and the value and esteem in which they hold them, along with the acknowledgment that whistleblowers represent the single best source of preventative and investigative intelligence.
Whistleblowers are indeed the most important asset a firm and the regulators have at their disposal in terms of preventing and detecting wrongdoing and provision of evidence, and there has been much talk and activity in respect to whistleblower codes, policies and rules and even ‘Whistleblower Champions’ within firms.
Most employees will have undertaken mandatory whistleblower training, outlining the firms policy, the legal rights of the employee and the protection by law that the employee has and, importantly, what the employee’s obligations are, what the employee must blow the whistle about and, incredibly importantly, HOW to blow the whistle. Senior Managers will also have undertaken additional mandatory whistleblower training outlining how to recognize a whistleblower disclosure and how to deal with it.
Great. Job done. Employees and customers can all sleep a little more comfortably, and those that would do wrong had ‘…better sleep with one eye open!’ to borrow an apt quote from the infamous FX Cartel chatroom. Right?
Not so much.
We all know that, historically, to blow the whistle carries with it great dangers. The risk of retaliation by your employer by way of dismissal or career stagnation, the financial risks that come with that, and the risk of blacklisting that will end your career in the industry. Not to mention any of the associated psychological stresses involved. But that’s all changed now, right?
Not so much.
Speaking from personal experience, employees that blow the whistle have actually never been as vulnerable as they are in the present environment.
The problem is that no employee will realize just how vulnerable they are, until it’s too late.
Hence my simple guide to help distinguish myth and belief from reality.
- Whistleblowing has it’s own dedicated law; The PIDA (Public Interest Disclosure Act).
This law sets out quite clearly that which constitutes a ‘Protected (Whistleblower) Disclosure’, and the legal protection for all employees that make a ‘Protected Disclosure.
- There is a recognized leading authority for Whistleblowing, ‘Protect’ (Formerly Public Concern At Work (PCAW)). Their mission purports to be ‘to protect society by encouraging workplace whistleblowing’, and that they:
- Advise individuals with whistleblowing dilemmas at work
- Support organisations with their whistleblowing arrangements
- Inform public policy and seek legislative change
Protect/PCAW are/were responsible for providing a ‘Model Whistleblower Policy’ upon which a significant number of company whistleblower Policies are based. In my own case, the Lloyds Whistleblower Policy was very much in line with this PCAW and Lloyds were very much a ‘client’ of PCAW.
We will assess their credibility later in the article.
- The FCA are officially recognized as the ‘Prescribed Persons’ for matters relating to Banks, financial markets and the conduct of persons authorized and regulated by the FCA. This means that the FCA has an obligation and responsibility to investigate the disclosures and take appropriate action and to ensure that the whistleblower and the whistleblower’s rights are protected.
And let us not forget, that if you are an FCA approved person the FCA compels you to make a disclosure and will hold the employee that turns a blind eye as guilty as the wrongdoer, or as complicit with the wrongdoer.
An employee can also make their protected (Whistleblower) to an MP and the police and, supposedly, enjoy the relevant protections.
Three pillars of support for Whistleblowers, legal protection and rights, and the might and the wisdom of the FCA, that bastion of integrity, that pantheon of financial markets experts in control. All good then?
Not so much.
All of the above appear to offer employees unprecedented recognition and protection. However, the reality is that the opposite is true. All that the above actually offer is the illusion of protection, the illusion that the FCA gives a damn, the illusion that your employer really has turned over a new leaf and the illusion that your employer really does have zero tolerance for wrongdoing.
In fact, I would say on the record here and now that if your employer does have a whistleblower policy based upon the Protect/PCAW model whistleblower policy then they are knowingly and deliberately committing an offence.
Strong words I agree but also fact. Let’s look at the key points of the Lloyds Bank Whistleblower Policy based upon the PCAW model policy. A policy that all staff were forced to familiarize themselves with via mandatory training.
It states that it ‘complies with all relevant laws and regulations’, that it is designed to ensure that staff that blow the whistle ‘will not suffer any detriment.’
It goes on to state that ‘colleagues are expected to raise concerns about ‘wrongdoing’ and defines that which constitutes wrongdoing; ‘Activity that is not compliant with all relevant laws, regulations and internal policies.’
It does also reference conduct that is not consistent with ‘Lloyds Group Values’.
That’s a tricky one. This is after all the Group that have been forced to repay billions of mis-sold PPI, conspired to manipulate LIBOR, conspired to manipulate REPO rates so as to repay the Bank of England less than they were obliged to, failed to tell investors (when asking them to approve the takeover of HBOS) that HBOS were receiving emergency funding from the Bank of England and that Lloyds itself had given HBOS a £10bio emergency loan, mis-selling of Interest Rate Hedging Products and the taking of excessive and undisclosed mark up on FX Spot, FX Forwards, Structured Product transactions, the HBOS Reading fraud, the cover up of the HBOS Reading fraud and the continued concealment of the wrongdoing and alleged criminality that lead to the destruction of thousands of businesses at the hands of its BSU and ‘Solutions’ departments.
IMPORTANTLY, and I cannot stress just how important this one line is, the policy tells employees ‘HOW’ to blow the whistle; ‘Colleagues should report a concern about wrongdoing or malpractice to line management in the first instance.’
One line, but more important and more misleading than you can possibly imagine, and the line that means that every employee at Lloyds, and every employee of a bank or firm with such a policy based upon the Protect/PCAW model policy has no protection under law whatsoever.
Again, a strong statement, but again true.
I followed the Lloyds Whistleblower Policy, that was based entirely upon the PCAW model Whistleblower Policy, to the letter and on numerous occasions, but Judge Tayler at my Employment Tribunal made this judgement:
- The Claimant (Me) was unfairly dismissed.
- The Claimant did not make protected disclosures.
This judgement that I had not made protected (Whistleblower) disclosures means that I received none of the protection that PIDA is supposed to offer, and I was not eligible to receive compensation appropriate to the loss of earnings suffered as a result of my unfair dismissal and the ensuing blacklisting that ensures a career in the City is over.
However, more importantly, it means that nobody else that follows those whistleblower policies has any protection either.
Furthermore, and even more importantly, Lloyds and other employers already know this. How so?
Because it was Lloyds that argued in their closing statement at my Tribunal that I had not made protected disclosures and introduced case law precedents from previous Employment Tribunal judgements to support their arguments.
This despite Lloyds having confirmed to me in writing that I had made protected disclosures, confirmed that which they believed to be protected disclosures and therefore confirmed that I was a whistleblower and therefore protected.
I even had an audio recording of a meeting with the Head of FX, Anders Henrikson and the HR manager that ‘engineered’ my unfair dismissal, where he tells me that I have made protected disclosures and that I do have protection.
Furthermore, prior to my tribunal, both the FCA and PCAW also confirmed that I had made whistleblower and therefore had made protected disclosures as defined by PIDA.
These judgements that Lloyds introduced were from cases that bore little resemblance to my case beyond the fact that they involved whistleblower disclosures. However, it is the precedents set by these previous judgements that are all important. So important in fact that even where these precedents conflict with PIDA as written, it is these precedents that rule all. These precedents and determinations and interpretations of PIDA by Judges in previous cases are what’s known as ‘Case Law’.
But then Lloyds, Protect/PCAW and other employers know that. They know that their own Whistleblower Policy, the Protect/PCAW model Whistleblower Policy and PIDA itself does not reflect the case law that will ultimately determine the outcome of whistleblower cases and claims.
They know that these whistleblower policies and PIDA offer all employees no protection under law whatsoever, and they are fully aware that these policies guarantee them a victory at the Tribunal should any employee have the temerity to file a claim in the event that they suffer detriment after making a disclosure about wrongdoing.
Just my opinion? No. It was after all Lloyds themselves that argued that I had not made my disclosures in the correct way, as determined by case law. Yet, I followed their whistleblower policy to the letter. A policy that they claimed was consistent with relevant law and that would ensure employees suffered no detriment.
And let’s not forget here that PIDA states that:
“A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following; criminal offence, failure to comply with legal obligation, a miscarriage of justice has or is likely to occur, that any of these is being or is likely to be deliberately concealed.”
I had far more than a reasonable belief, I had 100% conviction in each disclosure and I produced evidence to support each disclosure, all of which was presented at my Tribunal. I actually went beyond the demands of the law and the whistleblower policies. Indeed the Protect/PCAW model policy goes so far as to say that whistleblower’s do not need to produce any evidence to support their disclosures!
I made disclosures about numerous issues including:
- The taking of outrageously excessive and undisclosed mark ups,
- The attempts to partial fill client orders by sales persons to their benefit and to the damage of the client,
- False reporting to cover up losses,
- Reckless derivatives risk taking (That would, several months later, cost the bank over £50mio),
- The denial of employees to the right to take independent legal advice when asked to sign serious legal documents and agreements that had the most serious potential consequences for employees, and
- That Lloyds knowingly allowed their employees to be slandered in the media and denied them the chance to refute the false allegations made prior to their publication (Straight from the bank/FCA scapegoating playbook.) A protective measure to enable Lloyds to serve employees up as scapegoats if there was later proven to be substance to the press article.
I made these disclosures verbally, in writing in emails and within my annual and mid year reviews and all BEFORE I was told that I was at risk of redundancy in September 2014. Yet the Judge still ruled that I did not make protected disclosures in agreement with Lloyd’s contentions to that effect under case law.
The significance of this is that my case and judgement now become a further precedent and case law in its own right. Case law that can now be used by every employer, and that which renders every employee without any protection under PIDA if they too follow the whistleblower policy to the letter as I did.
I have raised this with the FCA, directly in fact to Edwin Schooling-Latter, Head of Markets Policy at the FCA at the FX Week Europe event in November 2016 in the Q&A that followed his speech;
‘Is the FCA concerned that every employee of banks and firms in the City have no legal protection whatsoever should they blow the whistle?’
His response to a large audience shows just how out of touch he and the FCA are ‘To my knowledge that is not the case and whistleblowers do have protection.’
This factually incorrect response only coming after the longest and most uncomfortable silence after the question appeared on the huge screen behind him.
Not content with this answer I challenged him personally regarding his answer and he stated:
‘The judgement in your case only applies to your case.’
Naïve, out of touch or deliberately avoiding facing up to the reality?
Take your pick. The fact is, my case is now legal precedent and applies to ALL future cases.
But then this is consistent with respect to the FCA’s conduct throughout. The FCA that are the ‘Prescribed Persons’ for all matters relating to financial markets and FCA authorized and regulated persons and firms.
They are bound to act, they are bound to investigate and, bound by their own ‘Principles of Regulation numbers 7 & 8’ to act with openness and disclosure and Transparency’. All evidence to the contrary I’m afraid.
When I discovered that the Lloyds Group Fraud investigator tasked with investigating those disclosures (that Lloyds themselves had deemed protected whistleblower disclosures) had failed to interview any of the witnesses to these acts of wrongdoing some four months after they were escalated to him, I escalated my disclosures to the FCA and presented the FCA with the evidence to support all of them. This was in July 2015.
I had a two hour interview with the FCA Supervisory team for Lloyds and Andrew Brodie, the FCA’s FX Specialist on April 30th 2015. This interview was recorded by the FCA and I was given a copy. There is clear acceptance by the FCA that the issues in question were wrongdoing, bad practice and more.
When I go further and make a disclosure as to the Lloyds internal ‘investigations’ (I use the terms in its loosest sense) before I can conclude my disclosure Brodie interjects and describes them as ‘whitewashes’. He goes further by saying that this is ‘a pattern we are seeing (with Lloyds)’ that the FCA are aware of this and will be addressing it.
All well and good then, apparently…..
Not so much.
Not long after this I was informed by the FCA that, whilst they couldn’t say much at this stage, the FCA Supervisory team for Lloyds was considering what action to take against them. Justice for the customers and for me, or so it seemed…
However, from this point on the FCA’s conduct became, at first confusing, and then downright evasive and obstructive. They were avoiding giving their opinion as to the conduct that I had disclosed; Was it wrongdoing or wasn’t it?
That’s all I was asking them to confirm. I was not asking for help. I was not asking for their support. I clearly and emphatically made it clear that I just wanted the FCA to give their opinion as to the conduct that I had disclosed. The FCA then lied to my MP when he wrote to them requesting that they communicate their opinions as to the Lloyds conduct that I had disclosed.
However, worse was to come. As mentioned the FCA is regarded as the prescribed persons for matters relating to financial markets and their opinion and outcome of their investigation in to the conduct that I had disclosed was crucial. If the FCA confirm that it was wrongdoing, then my case at the tribunal is strengthened significantly, whereas if they denied that it was wrongdoing, it would damage my case.
I had no concerns because I knew that it was wrongdoing, and the FCA themselves had confirmed as much 3 months earlier.
However, on September 15th 2015, the week prior to my Employment Tribunal main hearing, the FCA whistleblower team sent me an email with this message:
“Greg (Greg Choyce Head of Department for FCA Advisory Counsel) has asked me to point out that at present the FCA are not willing to provide an opinion in this case, for various reasons, including that we do not currently hold an opinion which we could provide to the Tribunal and therefore there is no suitable individual at the FCA in a position to give an opinion. If the Tribunal contacts the FCA, we would explain this and our other points to them.”
Three months after telling me that they were considering what action to take against Lloyds, with the clear implication being that action would be taken, the FCA, the regulator of Lloyds and financial markets, were now saying that they had no opinion and nobody suitable to give an opinion as to whether or not the conduct I disclosed constituted wrongdoing or not.
They effectively hung me out to dry. I now had to face the Tribunal, with my word on these disclosures against the word of several Lloyds senior managers, all of whom were obviously going to deny any of the conduct was wrongdoing so as to save their skins. It was highly likely that the Judge would be influenced by the skewed opinions of these executives and that a miscarriage of justice might take place.
And so it transpired. Whilst I won my case for unfair and unlawful dismissal, the Judge agreed with Lloyds contentions that none of the disclosures represented wrongdoing. Whilst the Judge actually had no scope to draw any conclusions as to whether or not the disclosures did expose wrongdoing, only whether I had made my disclosures with a ‘reasonable belief’, the fact that he had incorrectly drawn these conclusions certainly played a significant part in the remainder of his judgment, and skewed his opinion in respect to the disclosures being protected.
There is no doubt that had the FCA published their opinion as to these disclosures that the Judge would have dismissed Lloyds contentions.
This would have entitled me to ‘unlimited compensation’ and compensation more appropriate for the loss of my career and loss of career earnings, not to mention the enormous stress that I and my family had been through.
Indeed, just a few months after my judgement the FCA published details of their FX Remediation Programme, or ‘Get out of Jail Free card’ for many banks, and listed all of the wrongdoing that banks had been guilty of:
The programme focussed on potential unacceptable behaviour, trader misconduct, breaches of client confidentiality and the failure to manage conflicts of interest, including but not limited to a number of specific risks that we asked firms to address. These were:
- attempting to manipulate or control fixes
- misleading clients by implying they are getting the best rate, when in fact the rate they received may have included a significant ‘hard mark-up’
- engaging in coordinated trading to gain an unfair advantage
- performing partial fills of client orders but not passing to the client the correct fill
- using ‘layering’ or ‘wash trades’
- deliberately triggering client stop loss orders
- front running
- sharing confidential information with clients and traders at other firms
- unfairly assigning clients the worst rate available in relation to ‘transaction window’ trading
- inappropriately using personal dealing accounts, including spread betting
The wrongdoing highlighted in bold are those that I made disclosures about. Whilst these were not officially published by the FCA until 2016, internal FCA documents that I now have, confirm that the FCA had classified the conduct exposed by my disclosures as wrongdoing, and had done so in May 2015, four months BEFORE my Tribunal hearing, and four months BEFORE they claimed they did ‘not currently hold an opinion’, so as to avoid having to give these opinions to me and the Tribunal.
So, to all employees of banks and financial firms, think very carefully before you escalate or report anything to the FCA.
To this day I have made repeated requests and Freedom of Information requests to the FCA for disclosure of the details of their investigations in to my disclosures, if any, and details of action taken, if any. They have refused, citing all manner of reasons including incredibly, it might reveal details that are commercially sensitive or damaging to Lloyd’s business.
Really? It would only damage Lloyds business if they had done wrong, and if they had done wrong as I claimed, then tough. If you break the rules and deceive and defraud clients, then that’s the price you pay.
It is continued conduct that raises serious questions as to the integrity of the FCA. They did not hesitate, after all, to publish to the media and the public all manner of evidence and damning judgements in respect to Chris Ashton of Barclays and other individuals.
Irrespective of what Ashton or others had or had not done, the FCA published their damning accusations and opinions about him to the media along with cherry picked evidence, destroying him and denying him the opportunity for a fair hearing at the Employment Tribunal.
Whereas, in my case, the FCA went to extraordinary lengths NOT to publish the fact, and their opinion, that Lloyds and their employees were guilty of the wrongdoing that I had exposed, and therefore prejudiced my hearing and denied me the opportunity of a fair hearing.
I complained to the FCA after my Tribunal and after they had published a press release claiming to be champions of whistleblowers and recognize how vital a role they play. All a far cry from that which I had experienced at their hands. I was promised a response to my complaint within 40 days. It took them 14 months and is little more than a whitewash!
More disturbing is that after making my complaint to the FCA in October 2015, and being promised a response within 40 days, I advised the FCA that I had one year in which to appeal the Tribunal judgment on the whistleblower element, that this deadline was 8th December 2016, and that I was going to be requiring the FCA formal complaint response in order to do so.
I finally got the response that was promised within 40 days, some 428 days later, on December 16th 2016, and entirely coincidentally, the week AFTER the deadline for Tribunal appeal had expired.
So much for the FCA’s own ‘Principles of good regulation’, numbers 7 (Openness & disclosure) and 8 (Transparency).
Indeed, whilst my case case against Lloyds and the FCA very much continues to this day, recent evidence obtained from the FCA via a DSAR has proven incredibly revealing. Whilst the disclosure is unlawful in respect of the amount of data withheld and the manner in which vast amounts has been ‘redacted’, what this new evidence shows is:
- The FCA had made a decision to ‘bury’ everything pursuant to my disclosures in May 2015.
- The FCA prior to making this decision to bury everything had undertaken no investigation whatsoever.
- That it was actually Lloyds that had contacted the FCA, not the other way around, and after I told the Lloyds internal ‘investigator’ (I mean that in the loosest possible sense of the word) from the Lloyds Group Security & Fraud department that I had escalated my disclosures and evidence to the FCA months earlier.
- That the Lloyds ‘investigator’ provided the FCA with their outcomes to their ‘investigations’, in so doing giving their formal version of events and ‘findings’.
- That the version of events that they provide the FCA is the very version of events that I had already escalated to the FCA as a subsequent disclosure, along with significant evidence to prove how this investigator had contrived and falsified these outcomes.
- That the FCA did absolutely nothing, despite having evidence to show where and how these outcomes had been falsified and contrived.
- That Greg Choyce, the FCA counsel that ordered the whistleblowing team to pass on his lie as to the FCA having no opinion, offered a reason to the whistleblowing team as to why they were being forced to pass this message on to me ‘if we give an opinion we are doing so on one set of facts’. This despite the FCA having been in possession of Lloyds falsified version of ‘facts’ for months prior to his statement.
However, of perhaps even greater concern is this……
In the belatedly received response to my DSAR, a name was revealed on numerous internal emails pursuant to my disclosures. That of Jane Attwood. Emails show that she was very much involved in the handling of my disclosures and very much involved in the FCA response to my complaint lodged in October 2015 regarding my treatment by the FCA as a whistleblower.
I’d never come across her before, so looked her up on LinkedIn.
However, she is not just head of any old department. She is the Head of FCA Intelligence. This is the department that manages the whistleblower team and is responsible for FCA investigations.
So, a very important and influential position then. However, it was what was revealed beneath that gave me cause for very real concern. (screenshot of Attwood LinkedIn page taken on February 17th 2017)
Between January 2011 – October 2013, Attwood was not only a Director of Lloyds, she was a Director of the Group Security & Fraud department of Lloyds. The very department, and her former colleagues in that department, that I had made a disclosure to the FCA about in respect to falsifying and contriving investigation outcomes so as to deny wrongdoing.
How is it not a conflict of interests for her to be anywhere near the handling of, or the investigations in to, my disclosures about this Lloyds conduct?
I raised this as a very serious concern with the FCA. Not only in respect to the conduct exposed by my disclosures, but also any involvement or oversight Attwood might have had in respect to other serious Lloyds cases including LIBOR and HBOS/Lloyds Reading.
The FCA has a lot to answer for in both of those cases, as does the Lloyds Group Security & Fraud department. After all, was it not the Lloyds Group Security & Fraud department the very department that conducted an ‘exhaustive internal investigation in to LIBOR’, and concluded in June 2012, when Attwood was very much a Director, that there was no wrongdoing and exonerated all LIBOR traders at Lloyds?
A conclusion that was not accepted by U.S regulators including the DoJ, who then conducted their own investigation along with other bodies, and discovered no end of wrongdoing that resulted in the sacking of 8 Lloyds LIBOR traders in September 2014, several of whom had been completely exonerated by the Lloyds internal investigation.
Having raised my very serious concerns with Andrew Bailey and other senior FCA executives I prepared a follow up six week later to ascertain that they were acting upon my concerns.
It is important at this stage to establish that the conflict of interest concerns that I had raised were threefold:
- That Attwood had oversight of, involvement in and influence over the handling of my disclosures made on behalf of Lloyds customers and shareholders.
- That Attwood had oversight of, involvement in and influence over the handling of my disclosures made in respect to Lloyds treatment of me as a whistleblower.
- That Attwood had oversight of, involvement in and influence over the handling of the FCA’s response to my complaint against them.
I returned to Attwood’s LinkedIn profile six weeks later to check some details.
Six weeks since my raising of these very serious concerns and no evidence of action from the FCA or its CEO.
Indeed, the only evidence of any action in respect to my raising of these most serious of concerns was to be found on Attwood’s LinkedIn profile, which now looked like this for the period of her career when she was employed by Lloyds: (screenshot taken on April 8th of Attwood’s LinkedIn profile)
Attwood had doctored her LinkedIn profile to conceal her previous employment at Lloyds and in the Lloyds Group Security & Fraud department.
So much for the FCA’s own ‘Principles of good regulation’, numbers 7 (Openness & disclosure) and 8 (Transparency).
So much for Andrew Bailey’s statements in the Guardian in September 2016 “I am rightly held to account – by parliament and ultimately by the public we serve.
I believe in taking responsibility for my actions and that the FCA must live by the principles it espouses.”
Clearly, not so much. So far Bailey has proven to be just another slave to the soundbite, failing to deliver that which he preaches.
Moving on to Protect/PCAW…..
When I highlighted the fact that their model policy being used by Lloyds and countless other firms is knowingly misleading and ensures that no employee has any protection given that it is not consistent with case law, they acknowledged this and explained in writing that their policy was ‘deliberately non-legalistic but it is in compliance with the law.’
- It is not compliant with case law which is all that matters, and
- ‘Deliberately non-legalistic’, for a policy that could hold the lives and careers of every employee in the balance? Seriously?
The only time that an employee will need this policy or need to call upon the protection it is supposed to offer, is when they have a need to take legal action via the courts or the tribunal, and that’s when it gets as legalistic as it comes!
This makes doing the right thing an ‘all or nothing’ gamble for every employee nationwide, however, every employee has no idea that this is the case.
However, there are steps you can take to level the playing field here.
Step 1 – Make sure your interests are secured BEFORE you blow the whistle and make your protected disclosure. Yes, a protected disclosure MUST be made in the public interest, but that does not prevent you from ensuring that your interests and those of your family are protected before you do so.
Speak first with lawyers that specialize in whistleblower cases.
Why? Because expert support and lawyers will enable you to ensure that you make your disclosures in precisely the correct way so as to ensure that you do have all the protection of the law.
Furthermore, it could be that your disclosures would qualify you for a reward under U.S whistleblower legislation. In such instances it is imperative that you a) Find out and b) make your disclosure in the correct way so as to ensure that you qualify for a reward.
Your employer will likely only have Protect/PCAW material that includes their contact details. However, contact Protect/PCAW at your own risk.
Don’t have a lawyer? Then speak to an organization not funded by the banks and firms as Protect/PCAW are/were. I.E. Whistleblowers UK, (www.wbuk.org ) who are dedicated to supporting employees and whistleblowers.
Step 2 – Only after receiving legal advice should you then make your protected disclosures, and only by whichever channel your lawyer advises.
When submitting you protected disclosures by the channel advised by your lawyer, copy your MP in on the disclosures. You are legally entitled to make protected disclosures to your MP, and if your employer is aware that an MP is aware and will be monitoring events, it will hopefully make them think twice before acting unlawfully.
Step 3 – Do not trust the confidential whistleblower hotlines that might be in place with your employer. We all know that there is no such thing as Chinese Walls or confidential process within banks and large firms. Your Line manager or other managers higher up will likely find out about the disclosure and will likely be able to determine who made it, even if they are not told specifically who made the disclosure.
If you use the whistleblower hotline, all you are doing is giving the senior managers deniability in respect to knowledge of your disclosures. They can then dismiss you or take action against you with the ability to claim that they had no idea that you had made a protected disclosure and therefore claim that your disclosure had nothing to do with any action they took.
If you have protected your interests, and your employer and line managers know that you have taken legal advice, they will think twice about breaching your rights afforded you by both employment law and PIDA.
Step 4 – Do NOT allow your employer to stall or delay internal processes, be it investigating your concerns, grievance processes or dismissal or redundancy processes. Your lawyer will tell you that time is of the essence.
In my case, Lloyds delayed every internal process way beyond their own timelines defined in policy. Why? So as to be able to try and claim ‘out of time’ in the event that I filed a claim as a whistleblower.
Be sure that you are aware of any obligatory timeframes within Grievance, dismissal appeal or disciplinary policies that your employer is bound to observe. Where there are none, demand that your employer sets out strict times within which they will complete steps of the process. If they refuse, or provide unreasonable timeframes, then you set out to your employer your own timeframes.
If any of these timeframes are breached by even one day. TAKE ACTION.
3 Months. It is vital that you remember this. 3 Months. That is all the time you have to bring a claim. One day beyond that and it could be game over and your opportunity for justice and compensation is gone.
Your employer will be fully aware of this 3 month deadline, and it is one of the reasons why various Bank or company policies have strict timeframes within which Grievance investigations, redundancy appeals etc. MUST take place.
However, nowhere in any of these policies does your employer advise you as to why these timeframes are there, and that you will have just a 3 month window to escalate your claim to the Employment Tribunal.
In my case, I formally appealed my redundancy on November 4th 2014. My appeal hearing and decision should, according to Lloyd’s policy, have taken place within 4 weeks.
Lloyds delayed every step of the process, particularly the ‘outcome’ way beyond their own timeframes. I received my ‘decision’ 3 months and 1 week after I filed my redundancy appeal. Coincidence?
Likewise my grievance outcome that was supposed to have been completed within 14 days, was received 3 months and 1 day after I filed my redundancy appeal. Coincidence?
DO NOT WAIT. Justice will not wait for you.
Step 5 – Before or when you make your protected disclosure/s submit a DSAR (Data Subject Access Request) to your employer.
Your employer then has 30 days to disclose to you all of the information that they have on file about you, including any opinion of you or any intent towards you.
Why? This gives you an absolute record of everything that your employer holds on file about you BEFORE you make your disclosures.
If you are later subject to retaliation of any kind, then make another DSAR that will give you all of the records from the point AFTER you made your disclosures.
This will be valuable in demonstrating a clear ‘before’ and ‘after’ in respect to how your employer treated you.
IMPORTANT: If you have not submitted a DSAR prior to making your disclosures, submit one immediately that you suffer any retaliation, be it dismissal, redundancy or other.
It can only help your case and any internal appeal that you make, if you have all of this information to hand.
It will also be invaluable in the event that you later have to take the case to the Employment Tribunal.
I won Unfair Dismissal at the Tribunal in part because I had information as a result of the DSAR, that Lloyds would later try and conceal from the Disclosure process and the Tribunal, and that also revealed that other evidence, also not disclosed, MUST have existed.
Step 6 – As is likely, your employer or processes that they have in place will fail you and the public on who’s behalf you have made your disclosures, and you will need to take further action, or escalate your disclosures further.
Think carefully before you do.
Again, and I cannot stress this enough, contact your lawyer before every step.
From my experience, I would not recommend that you escalate to a regulatory body where it is funded by the firms that it is supposed to regulate, and I especially would NOT escalate your disclosure/s to the FCA.
They have an automatic conflict of interest and they will serve their own interests and those of the firms that they regulate first.
It is important for all employees and whistleblowers to understand that EVERY disclosure will represent wrongdoing that has either gone unnoticed by the FCA, or wrongdoing that the FCA was aware of, but had failed to investigate or punish those responsible.
In my case, unbeknown to me until my Tribunal hearing, the FCA turned on me because it transpires that they had approved the Lloyds Bank Financial Markets pricing policy that told sales persons to target non sophisticated customers for excessive and undisclosed mark ups. Conduct that was contrary to the ‘no charge’ assurance Lloyds were giving these customers, and conduct that had just been deemed criminal on May 20th2015 by the U.S. Department of Justice, and conduct that was among those for which Barclays were fined $2.5billion on same May 20th by the NYDFS (New York Department of Financial Services)
This includes Protect/PCAW. Almost all of the big banks and firms are ‘clients’ of Protect/PCAW, and having spoken to them frequently over the past few years, can say that they do not have resources or inclination to assist beyond very basic guidance, none of which will be of use to you the whistleblower.
Instead of escalating to the FCA, you can escalate your disclosures to your MP if you have not done so, or direct to the police.
Only escalate to the FCA if they first agree in writing that they will provide you with the outcome of their investigations in to the wrongdoing that you are making the protected disclosure about, and any opinions in respect to them.
If the FCA refuses, do NOT disclose anything to them.
However, whilst the FCA are too conflicted, lacking expertise and therefore unfit for purpose, the ‘regulatory’ body that trumps all in respect to looking after their own interests and those of the their members?
Take a bow the Solicitor’s Regulation Authority (SRA). By far the most appalling and conflicted body in the UK today and that goes that extra mile to protect its members.
I told a Lloyds in house lawyer, appropriately named Melissa La hood, that I wanted to seek some legal advice from my lawyer prior to signing an NDA and DPN (Document Preservation Notice) that the bank was demanding that all members of the FX team had to sign BEFORE the commencement of their internal FX investigation in December 2013. Said documents made threats of serious punishments for breach thereof including financial penalties and criminal charges and yet the documents were poorly written and lacking scope.
La Hood’s response, in writing by email, was:
‘This is not something that we consider you require independent legal advice to respond to….. you must not share with any third party.’
When I challenged this, I was subject to threats and intimidation made by La Hood via Anders Henrikson the Head of FX, and whereby my bonus and job were threatened.
According to the SRA this was not denying me or my colleagues Independent Legal Advice prior to signing these serious legal documents. However, they failed to tell me quite how I was supposed to obtain legal advice without showing the documents in question to my lawyer, the only third party in question in the discussion with Lloyds and La Hood.
In response to a Freedom of Information Request to the SRA requesting details of complaints they received and the outcomes they produced, these are the incredible facts for 2015:
COMPLAINTS RECEIVED: 10,731
COMPLAINTS UPHELD: 146 (Just 1.36%)
COMPLAINTS REFERRED TO SDT (Solicitors Tribunal): 45 (Just 0.41%)
Those statistics are simply not possible if the body is objective, fair and independent.
Do not believe that just because there is so much apparent attention on behalf of whistleblowers, that you are afforded protection from retaliation or wrongdoing.
In the first place, the moment that you make your disclosure, someone somewhere within your firm will be at risk. It’s the nature of any whistleblower disclosure.
The chances are that more than one person will be at risk, and also that a senior manager at some level will feel threatened because the wrongdoing occurred on their watch or within the business unit that they are responsible for.
Once they are in this position, they essentially have nothing to lose. They are already potentially going to face action or lose their jobs, so they have no downside in coming after you, trying to discredit you and lying and denying, but huge potential upside if they are able to destroy you and conceal their wrongdoing.
Combine that with the fact that the law and whistleblower policies do not afford you the protection that you think they do, far from it, please, please, please, stop and get advice and proper guidance before you do anything.
Yes, you have an obligation to do the right thing in the public interest and because it is morally right to do so, but you also have an obligation to yourself, to your career, to your well being and to ensure the financial futures of yourself and your family.
I am sure that Lloyds, when presented with this article for comment, will roll out the standard soundbites; ‘we take these matters very seriously’, ‘we have zero tolerance for wrongdoing’, ya da ya da ya da. Really?
Not so much.
Not when you consider this. A senior person in Lloyds HR was solely responsible for seeing that my redundancy was conducted entirely according to ERA (Employment Rights Act) and Lloyds own policies, BUT who had, it was proven at the Tribunal:
- Lied in writing to the redundancy appeal hearing.
- Downgraded my performance rating no less than 4 times within two months so as to be able to window dress and contrive my dismissal, none of which were communicated to me, despite there being a requirement to do so, and despite such changes only permitted at yearly review stages, twice per year.
- Undertook these performance downgrades from ‘GOOD PERFORMER’ AFTER the decision was taken to make me ‘redundant’. No person in this category could be subject to redundancy.
- Lied to me and the redundancy appeal hearing as to when the decision to make me redundant had occurred. He claimed it was done in early September 2014, whereas internal Lloyds emails proved he was involved in the decision taken in June 2014.
- Failed to escalate my disclosures to the whistleblower team despite his assurances that he would do so
- Failed to take any steps to seek alternate roles for me within the bank
- Claimed in writing to my Redundancy appeal hearing that at the meeting where I was advised that I was at risk of redundancy:
“We presented Paul with a variety of other Band F roles that were available within the bank and he rejected them all”
Fortunately, I had recorded that meeting and was able to expose that for the lie that it was at the Tribunal. The recording proved that he had actually told me that as a matter of policy they MUST conduct a search for alternate roles within the bank for me. He told me that they had done this and that there were none.
I was also able at the Tribunal to prove that at the time of this redundancy meeting, there were over 100 Band F roles with Lloyds that I would have been qualified for and interested in.
- Failed to take any steps to seek any volunteers for redundancy. This is a legal requirement. It was common knowledge across the entire trading floor that the ‘elder statesman’ of the team was desperate for voluntary redundancy as he was approaching retirement age and had been at the bank almost 30 years. He was therefore moved out of the business unit and in to another unit that on July 4th, therefore removing him from the redundancy selection pool and the obligation to offer him voluntary redundancy.
- Participated in further manipulation of the redundancy selection pool, by moving the member of the team that contributed least to another business unit
- Attempted to interfere with a supposedly independent disciplinary process so as to contrive his and Head of Financial Markets desired outcome
- Manipulated my redundancy hearing that was supposed to be impartial and was supposed to provide objective review of the processes that he personally had undertaken so that I had no opportunity to cross examine him and senior managers as I had a right to do
- Plus additional breaches of the ERA and Lloyds policies.
All of the above was exposed during my Employment Tribunal hearing in front of the army of senior executives that Lloyds had in attendance each day at my hearing, all of whom presumably share this ‘zero tolerance’ perspective.
What became of this person? Fired? Imprisoned?
Not so much.
Promoted, two weeks AFTER the above was exposed, to Head of HR, Financial Markets, Financial Institutions and Regulatory.
And what became of the Lloyd’s in-house lawyer, Melissa La Hood, that denied employees access to Independent Legal Advice when forcing employees to sign legal documents with serious potential consequences for employees including financial and criminal?
Struck off? Sacked?
No. Also promoted, to Head of Legal for Commercial Banking.
HBOS Reading victims tell me that La Hood was present at a meeting immediately after the Fraud convictions were handed out, and where Lloyds told the victims that they had no knowledge of any of this prior to the Trial.
The Turnbull Report proves this was an absolute lie. As Head of Legal for commercial Banking, was she not aware of the Turnbull Report or was she aware of it and instead chose to go along with the lie?
In recent times whistleblowing has made new headlines, but again and despite the FCA’s soundbites as to the supposed unprecedented protection for whistleblowers and the FCA’s zero tolerance for whistleblower abuse the headlines and the facts demonstrate nothing has changed:
Jes Staley the CEO of Barclays not once, but twice, ordered his senior people to hunt down an internal whistleblower in breach of every applicable code, rule or law. So intent was he that his senior people went so far as to unlawfully involve law enforcement agencies in the U.S.
He had admitted to everything, yet the FCA initially did….. nothing.
He initially got away with just making a rather hollow apology, allegedly losing a small part of his huge remuneration package (That will no doubt be made up at a later date when the fuss has died down).
He claims that he ‘honestly, but mistakenly, believed that it was permissible to identify the author of the letter.’
Interesting defence, if completely inconceivable.
Staley and every one of his senior executives and people would have been required to undergo annual mandatory whistleblower training, PLUS annual mandatory Management whistleblower training that specifically trains management how to recognize and how to handle a whistleblower disclosure.
Did he skip that part of the training every year?
Furthermore, when he first attempted it, Barclays employees claimed he was told that was not permitted.
And when the FCA did finally act, they fined him £642,430. This for a man who earned £5.9mio in 2019 alone.
There you have the 2020 whistleblowing reality in a nutshell.
‘Protect’ formerly PCAW (Public Concern at Work) were presented with a copy of this article on May 31st 2020, and afforded the opportunity to comment or challenge any of the content. They declined to comment or challenge any of the content.
Adrian White and Ian Kitts (Press Office) of Lloyds Banking Group were also given the same opportunity on May 31st to comment or challenge any of the content. Lloyds response on June 1st in full was as follows:
“Dear Mr Carlier,
Thank you for your email dated 31 May 2020 to Adrian White and copied to Ian Kitts. I have been asked to respond on behalf of the Bank to this correspondence.
We will review the content of your article. Upon review, it may not be appropriate or necessary for the Bank to respond substantively to your correspondence. However any non-response does not mean we accept all of the points you make as being factual, rather that they relate to issues we have responded to previously.
No name on the email as is the norm these days it appears, no comment and no challenge. When I asked them to be more specific, they failed to respond.
A copy was also sent to Mark Steward and Toby Hall with Chris Hamilton of the Press Office copied.
On June 1st an email was received from Mark Steward’s email address in response, albeit that his name and all signature details had been removed from the foot of the email. His response in full was:
“Dear Mr Carlier,
The FCA declines to provide you with any comment on these allegations other than to note that they contain a number of false statements, and include matters that have been fully investigated by us and by the Complaints Commissioner. The fact that we have chosen not to respond in detail to your article does not mean any of your allegations are agreed or accepted or that it is lawful for you to make such statements, especially about current and former staff of the FCA. All relevant rights are expressly reserved.
Sadly, a typical vague and threatening response from Steward. I replied on June 1st seeking clarity and to challenge his claims within his email.
You need to understand that your threats are meaningless, and are a breach of PIDA as well as an attempt to pervert the course of justice.
You don’t get to make a denial and claim false representations exist within the article and then fail to identify that which you believe to be false.
This isn’t Kindergarten.
You and I both know that the Complaints Commissioner outcome, that you refer to and rely upon, was either contrived or falsified by him, or was produced based upon a disclosure (to him) by the FCA that was cherry picked and excluded any evidence that would prove or support my allegations.
You will have seen my email to the Complaints Commissioner over the weekend with you copied, whereby I challenge, with evidence, statements made by him, all of which are contrary to the evidence that I now have.
Can you explain why the July 2015 email from me with the interview transcripts, all of which entirely proved my version of events in respect to the attempt to defraud Tescos, and exposed Attwood’s former department and colleague as to having falsified witness testimony and the investigation outcomes, was buried?
Can you confirm who John Dodd Forwarded this email to?
Can you explain why so many FCA persons, within FCA internal emails, clearly have never seen this email or evidence?
Or is the FCA saying they have reviewed these interview transcripts and have taken no action against Lloyds for the clear and multiple false representations made by xxxxxxxxxx in his outcomes and the falsification of the witness testimony?
I don’t think you appreciate just how much trouble you and the FCA are in.
Now, I suggest that you identify that which you believe to be false so as to prevent publication of this protected disclosure, or I will not be held responsible for publishing what is a protected disclosure made in the public interest and with more than a reasonable belief, and with evidence to support all of it.
Steward or the FCA has not responded. I will cover the issues referenced in the above email in separate articles.