The Abu Dhabi Global Market free zone (ADGM) is seeking public consultation on its proposals for a whistleblowing framework, which will lead to the introduction of Whistleblower Protections Regulations (the Regulations) and amendments to the Employment Regulations. These proposals will impact all companies operating in the ADGM and will require companies to implement a whistleblowing framework through which disclosures can be made either internally or externally, which will be protected under the legislation.

The ADGM published Guiding Principles on Whistleblowing in December 2022 that, whilst non-binding, were designed to assist entities and individuals in the ADGM in establishing whistleblowing frameworks and ensure that potential whistleblowers were encouraged to speak up and were fairly treated when they did so.

The ADGM is now looking to implement statutory measures to implement many of the principles contained in the Guiding Principles and to require all companies to adopt a whistleblowing framework and provide protection for whistleblowers.

KEY PROPOSALS IN THE DRAFT LEGISLATION

The key points discussed in the public consultation paper are as follows:

• Whistleblowing protection will be available to any person, whether or not they are connected with the ADGM, who discloses information which constitutes a “Protected Disclosure” under the Regulations.
• In order for the disclosure to be a “Protected Disclosure” it must relate to knowledge or a reasonable suspicion that an establishment in the ADGM or an officer, employee or agent of that establishment either
  • has or may have contravened, or is likely to contravene, any provision of any ADGM regulations or rules or legislation administered by any ADGM authority; or
  • has or may have engaged, or is likely to engage, in money laundering, fraud or other financial crime,

  and the disclosure must be made in good faith.

• The Protected Disclosure can be made either:
  • internally within the company, for example, to a director, officer or any person in a management position of the relevant company, or any person designated by that company to receive the disclosure of such information; or
  • externally, for example, to the Registrar, Financial Services Regulator, Office of Data Protection, or criminal law enforcement agency in the UAE.
• A person making a Protected Disclosure shall not be subject to any civil or contractual liability for making the disclosure nor shall they be dismissed or otherwise suffer a detriment or disadvantage in connection with making the disclosure. The Employment Regulations list a range of prohibited retaliatory measures.
• It is not necessary for the person making the Protected Disclosure to identify themselves. In addition, companies are expected to implement and maintain an effective framework to facilitate individuals making Protected Disclosures whilst ensuring that their identity is protected.
• Unless a company is considered a small company under the ADGM Companies Regulations, companies are expected to set out their whistleblowing policies and procedures in writing, which must be reviewed periodically.
• Once the Regulations are finalized following the public consultation, it is anticipated that companies will be given a six-month transition period to prepare for full compliance. Thereafter, it is proposed that the Registrar may impose private or public censure, impose a financial penalty, or suspend or withdraw a company’s commercial license in the event of breach of the Regulations.
• Where an employer retaliates against an employee who has made a Protected Disclosure, the Employment Regulations allow the employee to apply to the court to seek an order for an award of compensation of such amount the court considers to be just and equitable in all of the circumstances, including any injury to feelings incurred by the employee, as well as losses suffered by the employee. The court may also order the employer to take specific steps to obviate or mitigate the adverse effects of any matter to which the proceedings relate on the employee or any other person, failing to do which may result in fines imposed.

WHAT DOES THIS MEAN FOR COMPANIES IN THE ADGM?

The public consultation paper makes the point that market participants in the ADGM ought to have already been on notice of the free zone’s intentions to implement a whistleblowing framework. As such, whilst the public consultation may lead to some changes in the proposed regulatory framework, it seems certain that the Regulations (and amendments to the Employment Regulations) will be implemented in some form.

In preparation for the forthcoming changes:

• Employers should consider what, if any, whistleblowing framework they already have in place and ensure that going forward a whistleblowing framework is adopted which addresses the concerns of the ADGM.
• Whilst the Registration Authority and Financial Services Regulatory Authority of the ADGM rightly point to the need for fairness, transparency and integrity in its markets, facilitated by the whistleblowing regime, some challenges remain to the way protection to whistleblowers can be promised, given the criminal laws of the UAE apply in the ADGM. In particular, the impact on the criminal sanctions relating to defamation and insult in the UAE Criminal Code must be carefully considered, and any global whistleblowing policy that a company may have should be tailored for the local market.
• Given the wide-ranging scope of the whistleblowing protection in the Regulations (as it can relate to breach of any ADGM regulations or rules or other legislation administered by an ADGM authority), it will also be important for employers to put in place a robust grievance procedure (distinct from the whistleblowing framework) to be used where employees have personal workplace concerns that would be more appropriately dealt with under a separate process.
• It is recommended (as proposed within the consultation paperwork) that companies designate a specific person or group of people to whom whistleblowing concerns should be raised in order to streamline the complaints process and ensure that any whistleblowing complaint is dealt with promptly and appropriately.

NEXT STEPS

The public consultation closes on 30 April 2024. After the ADGM has considered whether any changes are necessary to the proposed Regulations and amendments to the Employment Regulations, the consultation paper confirms that the authority will proceed to enact the proposals.