Top 10 tips for senior executives negotiating an exit
In my experience, having acted for individual whistle-blowers over many years, they are a group of brave, principled and determined individuals. The law on whistle blower protection is complex and employers typically fight such claims vigorously, taking as many technical legal points as they can, and seeking to take advantage of having “deeper pockets” to fund litigation.
It is the nature of whistle blowing that the wrong doing called out is often about matters which other colleagues are (or should be) aware. So, by highlighting breaches of standards, the whistle blower stands to set themselves apart from not just the actual wrongdoer(s) but also from colleagues (who were maybe work friends) who have been prepared to turn a blind eye to what was going on. Such colleagues may not like the implicit criticism that they might have done something. Loyalties and trust are typically tested in whistle blowing cases and the stress can often lead to mental health issues.
So it is heartening to see cases where employees have brought whistle blowing cases and won. If there is a trend, in my view, it is in favour of the employees, and the Tribunals and Courts are recognising the pressures which whistle blowers face.
One of the reasons why employees do go to the trouble of bringing whistleblowing claims is that, unlike for “normal” unfair dismissal claims, where there is a cap of about £90k, there is no cap on the level of compensation that can be awarded by a Tribunal in a whistleblowing case. For higher earners, the cap can be a major issue.
A frequent battle ground in whistle blower cases relates to the “causal link” i.e. whether the alleged blowing of the whistle was really the reason for the dismissal or detrimental treatment. Employers often argue that, even if there was a protected disclosure, it was not the reason for the treatment, rather it was to do with, say, the employee’s poor performance or them committing some other act of misconduct.
In practice, most whistle blower cases do settle before they come to a full hearing. One of the reasons for this is that, if the allegations of wrongdoing have any basis in fact, it will be embarrassing (at the very least) for the company concerned and its management to fight the case. It may make business and PR sense for the company to make a payment rather than to “air its dirty laundry in public”.
In conclusion, I would make the point that whistleblowing is generally recognised to be a good thing, encouraging organisations to act ethically and within the law. As the world becomes more complex and enforcement authorities more stretched, we are all the more reliant on the insiders to expose wrongdoing.
Nick is a highly experienced employment lawyer with an exceptionally strong reputation in the City of London and beyond.
Employment disputes can be very stressful for all concerned and Nick combines both empathy and toughness as necessary. He is a tenacious litigator and a tough negotiator with particular expertise in dealing with complex issues involving any combinations of employment rights, share or other ownership-related rights and the rights and obligations of directors, officers and/or partners/LLP members.
On 13 May 2022, the FCA published a final refusing Alexander Jon Compliance Consulting Ltd.’s (“AJCC”) application for authorisation to provide regulatory hosting services. There is no specific definition of what a regulatory host is, but the FCA generally regards it as a commercial arrangement whereby an authorised Principal firm appoints and oversees a number of unconnected Appointed Representatives (“ARs”) which operate across a range of markets.
In a case that attracted national media coverage and emphasises the crucial importance of regulatory compliance and the highest standards of professional conduct in the financial services sector, the High Court dismissed a breach of contract claim brought by an investment manager.
For the fourth year the FCA has published research on the changing relationship between consumers and cryptoassets. In spite of the pandemic, the strong upward trend in public engagement and media coverage has continued, with the FCA estimating 2.3 million adults now hold cryptoassets.
Global financial markets are preparing to transition away from the use of the London Interbank Offered Rate (“LIBOR”) and adopt an appropriate alternative risk free rate (“RFR”) by the end of 2021. What are the reasons for the move away from LIBOR, the progress to date in terms of identifying the Sterling Overnight Index Average (“SONIA”) as the most appropriate alternative rate in the Sterling markets, and the steps still required to be taken to ensure such markets are ready for the phasing out of LIBOR by the end of the year
At the end of last month, the Competition and Markets Authority (CMA) published a letter written to Danske Bank concerning its breach of the Small and Medium-sized Enterprise (SME) Banking Behavioural Undertakings 2002, following loans it had offered under the ‘Bounce Back Loan Scheme’.
As of 10 January 2021, all cryptoasset firms are required to be registered with the Financial Conduct Authority (FCA) under the Money Laundering Regulations.
FCA focuses on risks associated with unmonitored communications, including the use of unencrypted apps, such as WhatsApp, for sharing potentially sensitive or confidential information when working from home.
As we near the first anniversary of the extension of the Senior Managers & Certification Regime (SM&CR) to solo-regulated FCA firms, the first round of annual fitness and propriety assessments will be topping the to-do lists of many compliance professionals.
One of the impacts of the Covid-19 pandemic is that national income has fallen dramatically. In response to concerns from homeowners unable to meet their mortgage repayment requirements due to a drop in income, the Treasury and Financial Conduct Authority announced a ‘mortgage payment holiday’. This was the result of banks agreeing to allow mortgage-holders suffering from a drop in income to pause their repayments. A ban on home repossessions was put in place at the same time
The FCA announced on 5 November that it has banned three individuals from working in the financial services industry for non-financial misconduct.
How should regulated firms respond when issues come to light which call into question the fitness and propriety of a member of staff? In the second part of their series of fitness and propriety blogs, Jill Lorimer and Nick Ralph consider best practice. You can read the first part of the series by clicking here.
The Financial Conduct Authority (“FCA”) has recently provided information to their regulated firms as to good and bad practice relating to, amongst other things, the carrying out of fitness and propriety (“F&P”) assessments.
Research recently undertaken by the FCA has found that 5.35% of the UK population hold (or have previously held) cryptoassets where in 2019 this figure was 3%. For several years now the Government, the Bank of England and the FCA have been consulting on and considering how best to regulate this burgeoning market.
The news that Stephen Jones, head of UK Finance, has quit over "thoroughly unpleasant" personal comments he made in 2008 about financier Amanda Staveley, is a stark reminder to executives that their past behaviour may one day come back to haunt them.
The indications are that an increasing number of individuals are coming forward, particularly in the financial services sector, to call out wrongdoing.
Whilst the prime minister's broadcast on 10 May did not open the floodgates to City employers requiring staff to "return to work" enmasse, most firms are already drawing up plans for how that should be organised and many of us will have been thinking about what will happen when employers start to update their 'work from home' advice.
In a startling opening to a recent Newsnight, presenter Emily Maitlis began with the words “They tell us Coronavirus is a great leveller. It’s not. It's much harder if you’re poor."
Partners need to do what they would advise their own clients to do: be well prepared.
The moral arguments may well still apply but where salaries are less stellar, there may be more for an individual to lose on a relative basis and thornier issues to weigh on a practical level.
While plenty of people in all sectors are now working from home, designated key workers in the financial services industry are still being forced to go to work.
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