UAE witnessed its most significant whistleblower case in 2020, where an ex-partner of Ernst and Young (EY) reported the cover-up of a large-scale money laundering case by a client. The whistleblower was asked to resign by the company to cover up the audit report findings. The incident once again brought the topic of the whistleblower to the front pages. The government stepped in and issued statements in the press to inform and educate people about the rules related to disclosure of wrongdoings to authorities. Given the region’s economic scenario and countless companies in UAE, a Federal Law related to whistleblowing can be more impactful.
What are whistleblowing and whistleblower?
“A whistleblower is a person (mostly an employee or ex-employee), who highlights or exposes the wrongdoings of the company or high officials. The act of exposing is known as whistleblowing.”
To encourage more people to come out and report such misconduct, the government needs to raise confidence in the market. Moreover, it also needs to provide necessary legal provisions and infrastructure to promote good governance.
What does UAE Law say about whistleblowing?
The concept of whistleblowing is still at its nascent stages in the UAE. Even though it is an established jurisdiction the concept of whistleblowing is not clearly defined in UAE law. Because of that, the law is not rigorously imposed. Lack of clarity to some extent intimidated the junior level employees to come forward and report a crime openly. However, the existing laws are strong enough. It provides whistleblowers protection and anonymity, provided the criteria are met.
The protection of whistleblowers is first mentioned in Dubai Law no. 4 of 2016, the financial crimes law. It was the first attempt of its kind to introduce whistleblower protections in the UAE. According to this UAE penal code, every individual has the positive obligation to report a crime. The criteria to qualify as a whistleblower in Dubai are:
- The disclosure must be accurate
- The disclosure of such activities might result in the endangering economic security of Dubai
- The disclosure must be made to the Dubai Center of Economic Security.
Only if all the criteria are met the disclosing party can be protected from the legal proceedings charged against them. The law expressly states that the person making the disclosure can get protection against disciplinary action, mistreatment, or discrimination. Moreover, no confidentiality agreement or non-disclosure is deemed liable in such cases.
Central Bank Reporting Portal for Whistleblowing in the UAE
The latest and most positive development came in June 2021. The Central Bank of the UAE (CBUAE) eased the reporting mechanism by introducing an online whistleblowing portal. The employees, contractors, and representatives of CBUAE can use the portal to report misconduct. Along with this, reports can also be submitted via telephone or writing. Moreover, one can also remain anonymous and not be forced to disclose their identity. The portal can be used to report the following issues:
- undisclosed conflicts of interest
- ethical violation
- breach of specific law and regulations
- violations by entities regulated by CBUAE. It can be done only if no appropriate response was received through the proper regulatory channel.
DIFC Operating Law
DIFC operating law no. 7 of 2018 covers a range of whistleblowing provisions. It elaborates employees have an obligation to disclose several types of misconduct, and they will be protected from any contractual or civil liability. The whistleblowers cannot be dismissed or suffer any detriment because of reporting the misconduct, where disclosure is:
- made in good faith
- contains the identity of the person who made the disclosure
- involves a reasonable suspicion that the individual and company has contravened the DIFC operating law
- made to officers or the director of the company
- made to the company’s auditor or a member of the audit team, or the DIFC Registrar of companies.
Employees who fail to fulfill the requirement of such disclosure can be punished with a fine of USD10,000.
For the protection of whistleblowers, the DIFC Operating Law provides several steps. Anyone who is disclosing in good faith and it is in accordance with the law can be a whistleblower. As a result of making the disclosure, the employee shall not be:
- subject to any legal or contractual, civil or other liability
- removed from employment or otherwise subject to victimization by the employer or any related person.
If whistleblowers, in any case, are removed from the job or detriment, the employer can be fined for USD30,000.
The DIFC Operating Law further instructs a ‘Registered Person’ (being any registered entity in the DIFC) must disclose any matter which involves:
- a breach of the Operating Law, its regulations, or other specific legislation
- a failure to comply with obligations under certain laws or
- violations of any other matter which may be set out in regulations.
Failure to disclose where the obligation arises may result in a fine of USD10,000.
The provisions for whistleblowing in DIFC Operating Law can be updated to make it broader. The disclosure by a ‘Registered Person’ does not include some points. For example, unethical practices by that entity. However, there are several obligations imposed on DIFC companies. The companies need to increase their focus on governance and must take steps such as:
- including a contractual obligation on employees to report wrongdoing of which they may become aware during employment
- improve corporate governance concerning the creation of policies
- creating and maintaining proper whistleblowing policies and procedures.
Many companies in UAE are adopting formal whistleblowing policies. However, due to the lack of any federal law, it lacks teeth and nails. The introduction of the Financial Crime Law (2016) and the DIFC Operating Law, to some extent, impose obligations on companies in Dubai. However, legal experts believe that the government must introduce a Federal law for whistleblowing to make it uniform in all Emirates. However, government agencies strictly scrutinize companies in the UAE to have fair and transparent financial dealings.
When laws are not clearly defined, it can put fear in the mind of the whistleblowers. In such scenarios, the person who intends to report misconduct must consult a reputed lawyer before moving ahead. You can contact our team of expert legal advisors and understand your legal situation. If your company has a whistleblowing policy, let our legal experts evaluate it and explain to you how your rights can be fully protected.