New Whistleblower Act now in force in the British Virgin Islands

The Act has been on the horizon for the past few years, with the draft legislation presented to the House of Assembly in early 2021. Now that the Act is in force, it is imperative that BVI companies, particularly those with employees in the BVI, understand the full extent of the protections afforded to whistleblowers and the obligations on entities in receipt of concerns.

Blowing the whistle

Any person can “blow the whistle” in respect of another person or an institution, which importantly includes the employer or fellow employee of that person.

The Act relates to “disclosures of impropriety”, which occurs in circumstances where a person has “reasonable cause to believe” that one or more of the following activities has, will, or is likely to be committed by another person or institution (whether a public or private body or organisation):

• A crime
• Other (non-criminal) breaking of the law
• A miscarriage of justice
• Waste, misappropriation, or mismanagement of public resources in a public institution
• Degradation of the environment
• Endangerment of the health or safety of an individual or a community

Importantly, the disclosure (and the person making it) will only be protected if:

• The disclosure is made in good faith;
• The whistleblower has reasonable cause to believe that the information disclosed and the specific allegation of impropriety are substantially true; and
• It is made to one or more specific persons or institutions

The specific persons and institutions a disclosure of impropriety may be made to include the employer of the whistleblower, as well as the Governor, the Premier, the Attorney General, the Commissioner of Police, a Cabinet Minister or Junior Minister, a member of the House of Assembly, the Complaints Commissioner, the Auditor General, and the head of a recognised religious body. In deciding who the disclosure is made to, the Act sets out various considerations that the whistleblower may make (such as a reasonable fear of intimidation, or fear of the destruction of evidence).

The Act also sets out details of the procedure for blowing the whistle, including consideration for whistleblowers who may be illiterate or suffering from a disability.

Investigations and evidence

The Act highlights the confidential nature of all disclosures made (including serious penalties for any person breaching such confidentiality), as well as the specific steps that must be taken by the person receiving the disclosure, which includes an obligation to submit written details to the Attorney General within seven days.

Detailed investigations into the concerns must be carried out expeditiously, with serious penalties (including imprisonment) for those found to be guilty of concealing or suppressing evidence as part of such an investigation.

Protection for whistleblowers

Critically, the Act provides protection to whistleblowers, confirming that they must not be subjected to victimisation by their employer or by a fellow employee (which includes dismissal, suspension, redundancy, harassment etc), nor by any other person.

Any person experiencing such victimisation can submit a complaint to the Complaints Commissioner, with further rights of action available to the victimised individual thereafter.

Whistleblower reward fund

A much-talked about element of the Act is the creation of financial incentives for whistleblowers, including the potential offer of legal assistance to individuals complaining of victimisation, and the establishment of a “Whistleblower Reward Fund”.

This fund, made up of voluntary contributions and other money allocated by the House of Assembly, is designed to provide rewards to whistleblowers, particularly those whose disclosures lead to a conviction or the recovery of money. Amounts rewarded include a certain percentage of the monies recovered or an amount which shall be determined by the Governor, after consultation with Cabinet.

Moving forward

BVI businesses, particularly employers, should become familiar with the Act to ensure that they can appropriately identity a disclosure of impropriety when it is made, and have procedures in place for adequately escalating and investigating any concerns, as well as preventing against victimisation.

With this in mind, internal whistleblowing policies should be reviewed or implemented to ensure they reflect the new provisions of the Act.

The content of this article intends to provide a general guide to the Act. If you require further information on the Act, or you would like our assistance in reviewing or preparing your Whistleblowing Policy, please contact the authors for more details.