179-16 Meaning of Protected Report, Protected Reporter, Worker, and Employer

In this Part:

Protected Report means a report that meets all of the following requirements:

(1) it is about an AIFC Participant or a person connected with a AIFC Participant;

(2) it is made to the AIFC Participant itself or a Person specified or referred to in section 179-17(1) (Protected Reports and Protected Reporters);

(3) if it is made to an authority or officer, the authority or officer is responsible for matters of the kind reported;

(4) it is given in good faith;

(5) it gives information that the reporter reasonably believes shows that any of the following has happened, is happening, or is likely to happen:

• (a) a criminal offence (whether under the law of the Republic of Kazakhstan or of another jurisdiction);
• (b) a person is in contravention of a legal requirement, or is failing to comply with any legal obligation to which he is subject;
• (c) the endangering of the health and safety of an individual;
• (d) a breach of an AIFC Participant’s policies and procedures (including, for example, a breach of any code of conduct or policy in relation to ethical behaviour); or
• (e) the deliberate concealment of a matter referred to in any of (a) to (d).

Protected Reporter means a Worker who makes a Protected Report.

Worker means:

(1) an individual who has entered into or works under (or, where employment has ceased, worked under):

• (a) an express or implied contract of hire under which the other person has the right to control the details of work performance; or
• (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

(2) an individual who is not a worker as defined by (1) but who:

• (a) works or worked for a person in circumstances in which he is or was introduced or supplied to do that work by a third person and the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them;
• (b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and who would therefore fall within (1)(b) if for "personally" in that provision there were substituted "(whether personally or otherwise)"; or
• (c) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than under a contract of employment or on a course provided by any university, college, school or other educational establishment.

Employer means:

(1) in relation to a Worker falling within (1)(a) of the definition of "Worker", the person by whom the worker is (or, where employment has ceased, was) employed;

(2) in relation to a Worker falling within (2)(a) of the definition of "Worker", the person who substantially determines or determined the terms on which he is or was engaged; or

(3) in relation to a Worker falling within (2)(c) of the definition of "Worker", the person providing the work experience or training.

179-17 Protected Reports and Protected Reporters

(1) A Protected Report shall be protected provided that it is made to:

• (a) the AIFC Participant concerned;
• (b) an auditor of the AIFC Participant or a member of the audit team;
• (c) a legal adviser in the course of obtaining legal advice;
• (d) a prosecuting authority;
• (e) a law enforcement authority;
• (f) an AIFC Body;
• (g) a regulatory or governmental authority, body or agency in a jurisdiction outside the AIFC (whether in the Republic of Kazakhstan or not), including a body or officeholder responsible for enforcing the criminal law of that jurisdiction; or
• (h) any other Person designated under the Acting Law of the AIFC.

(2) An AIFC Participant that receives a report that purports to be a Protected Report:

• (a) must treat the individual who made the report as a Protected Reporter; and
• (b) must treat the report as a Protected Report; until the AIFC Participant has decided, acting reasonably and on the basis of a proper investigation, that the report is not a Protected Report.

(3) If an AIFC Participant becomes aware that an individual has made a report that purports to be a Protected Report about the AIFC Participant to a Person specified or referred to in subsection (1), then the AIFC Participant must treat the individual as a Protected Reporter until the AIFC Participant establishes, acting reasonably and on the basis of a proper investigation, that the report is not a Protected Report.

(4) If an AIFC Participant proposes, in accordance with subsections (2) or (3), not to treat an individual as a Protected Reporter or a report as a Protected Report, then it must, where possible, provide adequate notice to that individual in order to allow that individual sufficient time to apply to the AIFC Court for an order pursuant to subsection (5) to retain his status as a Protected Reporter and that of the report as a Protected Report.

(5) The AIFC Court may order an AIFC Participant to:

• (a) treat an individual who has made a report as a Protected Reporter; and
• (b) treat that report as a Protected Report.

179-18 Right not to suffer detriment

(1) A Protected Reporter has the right:

• (a) not to be subjected to any detriment by any act, or any deliberate failure to act, done by:

(i) his Employer;

(ii) another Worker of the Protected Reporter's Employer in the course of that other Worker's employment; or

(iii) an agent of the Protected Reporter's Employer acting with the Employer's authority, on the ground that the Protected Reporter has made a Protected Report; and

• (b) not to be dismissed where the reason (or, if more than one, the principal reason) for the dismissal is that the Protected Reporter has made a Protected Report.

(2) Where a Protected Reporter is subjected to detriment by anything done as mentioned in subsections (1)(a)(ii) or (iii), that thing is treated as also done by the Worker's Employer and it is immaterial, for the purposes of this subsection (2), whether the thing is done with the knowledge or approval of the Worker's Employer.

(3) A Protected Reporter may present a complaint to the AIFC Court that he has been subjected to a detriment in contravention of subsection (1)(a) or he has been dismissed in contravention of subsection (1)(b).

(4) In proceedings against a Protected Reporter's Employer in respect of anything alleged to have been done as mentioned in subsection (1)(a)(ii), it is a defence for the Employer to show that the Employer took all reasonable steps to prevent the other Worker from doing that thing or from doing anything of that description.

(5) A Worker or agent of a Protected Reporter's Employer is not liable by reason of subsections (1)(a)(ii) or (iii) for an act that subjects the Protected Reporter to detriment if:

• (a) the Worker or agent does that thing in reliance on a statement by the Employer that doing it does not Contravene this section; and
• (b) it is reasonable for the Worker or agent to rely on the statement, but this does not prevent the Employer from being liable by reason of subsection (2).

(6) A Protected Reporter must not be subject to any civil or contractual Liability for making a Protected Report and no contractual, civil or other remedy or right may be enforced against the Protected Reporter by another Person for making the Protected Report or any consequence resulting from the Protected Report.

(7) Contravention of subsection (1) is punishable by a fine.

179-19 Remedies where detriment is suffered

(1) Where the AIFC Court finds a complaint made under section 179-18(3) (Right not to suffer detriment) well-founded, the AIFC Court:

• (a) shall make a declaration to that effect; and
• (b) may make an award of compensation to be paid by the Employer to the complainant in respect of the act or failure to act to which the complaint relates.

(2) The amount of the compensation awarded shall be such as the AIFC Court considers just and equitable in all the circumstances having regard to:

• (a) the infringement to which the complaint relates;
• (b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right; and
• (c) the extent to which the complainant has taken steps reasonably available to him to mitigate the loss referred to in subsection (2)(b).

(3) The loss shall be taken to include:

• (a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates; and
• (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.

(4) Where the AIFC Court finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

179-20 Whistleblowing policy

(1) An AIFC Participant must establish a written policy on whistleblowing that:

• (a) is approved by its Governing Body;
• (b) complies with this Part; and
• (c) is appropriate for the nature, scale and complexity of the AIFC Participant's business.

(2) An AIFC Participant that is a branch, or is a member of a group, may rely on the whistleblowing policy of its head office, or a group-wide whistleblowing policy, provided that the policy substantially complies with this Part.

179-21 Content of whistleblowing policy

(1) An AIFC Participant's whistleblowing policy must comply with all of the following requirements:

• (a) it must provide two or more independent channels for making a Protected Report, which may include any two of the following non-exhaustive examples:

(i) a dedicated email address to which reports may be sent;

(ii) a dedicated telephone number over which reports may be made; and

(iii) designated individual(s) within the AIFC Participant to whom reports may be made.

• (b) if appropriate, it must provide for a report to be made in a language other than English;
• (c) it must recognise that a report may be made by anybody with the necessary information (not only by an officer or employee of the AIFC Participant);
• (d) it must allow a Protected Report to be made anonymously;
• (e) to the extent that a Protected Reporter's identity is disclosed voluntarily or is revealed to, or inferred by, the AIFC Participant following an investigation of the Protected Report, the policy must provide for the identity of that Protected Reporter to be kept confidential (so far as possible);
• (f) it must provide for reasonable measures to protect a Protected Reporter, anyone who assists in investigating a Protected Report, and anyone who cooperates with the investigation, against retaliation or detriment;
• (g) it must explicitly recognise a Protected Reporter’s right (and, in certain cases, obligation) to report to or communicate with the entities or individuals listed in section 179-17(1) (Protected Reports and Protected Reporters);
• (h) it must provide a suitable set of guiding principles, and clear procedures, for the assessment, investigation and escalation of a Protected Report;

(i) it must provide for the investigation of a Protected Report to be independent of the individual or business unit concerned, for example through the appointment of a third party investigator;

• (j) it must provide for a Protected Report to be acknowledged by the AIFC Participant, and for the Protected Reporter who made it to be kept informed (to the extent that is appropriate in the circumstances) about the progress and outcome of the investigation;
• (k) it must provide for the reporting, monitoring and investigation of retaliation, attempts at retaliation and threats of retaliation against, and any other actions causing detriment to, the Protected Reporter and any Persons that assist in the conduct of the investigation;
• (l) it must provide for retaliation, an attempt at retaliation, or a threat of retaliation and any other actions causing detriment to the Protected Reporter or a Person assisting an investigation into a Protected Report to be treated as gross misconduct;
• (m) it must provide for appropriate reporting to the AIFC Participant's governing body and the AFSA about Protected Reports, the investigation of such reports and the outcome of the investigations.

(2) The AIFC Participant must set out the policy clearly in a document, and must ensure that all of the firm’s officers and employees have access to, and understand, the document.

(3) The policy must also clearly set out statements of:

• (a) the benefits to the AIFC Participant of the whistleblowing policy; and
• (b) the AIFC Participant's commitment to it.

179-22 Implementation of whistleblowing policy

(1) The Governing Body of an AIFC Participant must ensure that the AIFC Participant's whistleblowing policy is fully implemented.

(2) In particular, the AIFC Participant's Governing Body must take reasonable steps to ensure that a Protected Reporter, anyone who assists in investigating a Protected Report, and anyone who cooperates in the investigation, are protected against retaliation and any other action causing detriment.

(3) An AIFC Participant must nominate an appropriately senior individual to oversee the implementation of the whistleblowing policy.

(4) An AIFC Participant that receives a Protected Report must notify the AFSA within five business days.

(5) An AIFC Participant's Governing Body must ensure that the whistleblowing policy is reviewed and, if necessary, updated at least once every three years by:

• (a) the AIFC Participant’s internal auditor; or
• (b) an independent and objective external reviewer.

(6) An AIFC Participant must provide regular training for all of its Employees on its whistleblowing policy and any relevant procedures contained in the policy. In particular, the AIFC Participant must provide appropriate specialist training for the Employees who are responsible for key elements of the policy.

(7) An AIFC Participant may outsource the implementation of its whistleblowing policy. If the AIFC Participant does so, it must ensure that the outsourcing agreement:

• (a) nominates the individual referred to in subsection (3); and
• (b) otherwise provides appropriately for the implementation of the firm’s obligations under the policy.

(8) In the event that the AIFC Participant outsources the implementation of its whistleblowing policy, its rights and obligations under this Part shall remain unaltered, notwithstanding anything to the contrary in the outsourcing agreement.