CMA: UK Whistleblowing to the CMA Guidance for Protected Reporting

• The Competition and Markets Authority (CMA) is a 'prescribed person' for whistleblowing, covering breaches of competition and consumer protection law.
• Workers reporting wrongdoing to the CMA may qualify for legal protections against retaliation, including dismissal.
• Non-disclosure agreements (NDAs) cannot legally prevent individuals from making whistleblowing reports to the CMA.
• Whistleblowers should report what they already know and provide existing evidence, but are advised against self-investigation.
• The CMA handles reports confidentially and offers anonymous reporting, but cannot provide legal advice on whistleblower protection.

A critical aspect of these protections is that a non-disclosure agreement (NDA), sometimes referred to as a confidentiality or "gagging" clause, cannot legally prevent an individual from making a legitimate whistleblowing report to the CMA.

The Competition and Markets Authority (CMA) holds the designation of a 'prescribed person' under UK law, which is a crucial aspect for individuals considering whistleblowing to the CMA. This status enables workers to report specific types of wrongdoing by their current or former employers, potentially qualifying them for legal protections. The CMA's remit encompasses a wide array of economic activities, with a core focus on ensuring fair market operations and safeguarding consumer interests.

Specifically, the Authority is interested in receiving information pertaining to breaches of UK competition law, including anti-competitive practices such as cartels and other forms of market manipulation. Its scope also extends to violations of consumer protection law, aiming to ensure businesses adhere to fair and transparent practices. Furthermore, the CMA actively investigates concerns related to mergers and the rapidly evolving landscape of digital markets, recognizing their significant influence on the economy and public. Individuals are encouraged to report any concerns within these areas, even if they are not entirely certain about the legal specifics of the observed behavior.

Workers who disclose information to the CMA about their employer or former employer, particularly concerning potential breaches of competition or consumer protection law, may be eligible for substantial legal protections under UK whistleblowing legislation. These safeguards are designed to shield individuals from adverse actions, such as job loss or other forms of detrimental treatment, simply for having brought forward their concerns. A critical aspect of these protections is that a non-disclosure agreement (NDA), sometimes referred to as a confidentiality or "gagging" clause, cannot legally prevent an individual from making a legitimate whistleblowing report to the CMA. This ensures that contractual obligations do not override the public interest in reporting serious wrongdoing.

The process for reporting wrongdoing to the CMA is structured to be accessible and to maintain confidentiality. Individuals have several avenues for contact, including online submissions, telephone calls, or email. Upon receiving a report, the CMA is committed to carefully listening to the concerns presented and handling all shared information with sensitivity, with a primary objective of protecting the whistleblower's identity from disclosure. For those who choose to call, a recorded message can be left, and the CMA will return the call if contact details are provided. Email submissions will receive an automatic acknowledgment of receipt, and the information will be reviewed, with a response issued within five working days if contact details are available. While anonymous reporting is an option, it may limit the CMA's capacity for further engagement or action on the information provided.

Individuals who are considering reporting wrongdoing to the CMA are not expected to possess exhaustive knowledge or absolute certainty regarding the illegality of the conduct they have observed. The Authority's guidance emphasizes that whistleblowers should simply provide the information they already know, rather than attempting to conduct their own investigations or gather additional evidence they do not currently possess. Supplying any existing relevant materials, such as screenshots, emails, or documents, can significantly aid the CMA in its assessment and potential enforcement efforts. Reporting concerns promptly is also beneficial, as more recent events typically result in clearer recollections and more precise information.

While the CMA itself is unable to offer legal advice or determine an individual's eligibility for whistleblower protection, it strongly recommends that potential whistleblowers seek independent legal counsel. Alternatively, individuals can reach out to specialized organizations such as Protect or Citizens Advice, which can offer guidance on their specific legal standing and the protections available to them. Obtaining this external advice is crucial for understanding one's rights and obligations before proceeding with a formal report. The CMA's primary function is to receive and act upon information that could lead to investigations, not to provide personal legal guidance to those making reports.

Lawyers and compliance officers should be aware of the CMA's specific guidance for whistleblowers, particularly regarding competition and consumer protection breaches. This enables them to advise clients considering reporting wrongdoing to the CMA on the process, the scope of CMA's interest, and the legal protections available, including the ineffectiveness of NDAs in preventing such reports. Conversely, it informs advice to employers on managing potential whistleblower reports.

Source: Reporting based on official CMA guidance.