05 March 2019 by Kerry Round
A systemic failure of governance can be the catalyst for whistleblowing
Recently I watched ‘gritty’ American TV thriller, Berlin Station. Here, a CIA analyst goes undercover at the agency’s Berlin branch after it becomes the target of a campaign of damaging leaks from a mysterious whistleblower. I poise myself, ready to dazzle my husband with my knowledge of the Public Interest Disclosure Act 1998 (PIDA), ready to draw comparisons with the ‘wrongdoing’ being carried out by the Berlin CIA agency and those that will surely pass the ‘public interest’ test. I was to be sorely disappointed on both counts, but it did get me thinking about the reputation of whilstleblowers and to why the word ‘whistleblower’ can provoke a negative reaction.
If anyone loves a whistleblower, it’s Hollywood. For example, there is the film ‘Snowden’ which is about real life whistleblower Edward Snowden, a former technical worker at the CIA who revealed himself as the man behind leaks that uncovered secret US government surveillance programmes, who is seen as a traitor by some, yet a hero to others and a fugitive from the law. Or, ‘Fifth Estate’ which sees Wikileakes founder Julian Assange facing the possibility of life in prison when he created a platform that allowed whistleblowers to anonymously leak covert data.
The harsh shrill used by 19th century law enforcement officials and sports referees alike is why the term ‘whistleblower’ was coined. It symbolises the sounding of an alarm that something has been done wrong.
A whistleblower is a worker that speaks out either internally or to a prescribed external body, about wrongdoing within their organisation that would be of public interest. This begs the question, what is wrongdoing, would you know without looking it up now?
There are two sides to the whistleblowing coin. On one side we have the organisation in question. Surely if there is wrongdoing within an organisation, the board would want to be aware so they could put it right? Why would they be fearful of having a whistleblower in their midst? Could it be out of fear of bad publicity or reputational damage and the potentially expensive litigation and loss of business?Perhaps it’s a combination of all of these things that makes organisations so fearful of the whistle?
On the other side we have the whistleblower who might be scared of losing their job if they speak out; they might be worried about threats or intimidation from their colleagues. They might worry that they would not be believed and may fear retaliation.
What we do know is that most cases of whistleblowing are not clear cut and the whistleblower might be balancing any organisational loyalty that they might have against the potential benefits of stopping something happening that they know to be wrong. A high profile whistleblower might also question how they will be perceived by any potential future employers regardless of how justified their disclosure may have been.
“The whistleblower might be balancing organisational loyalty against the potential benefits of stopping something happening that they know to be wrong”
In reality most people who identify that something is wrong would want to stop it and most companies would want to know if something was wrong within their organisation so that they could stop it, wouldn’t they?
A worker should know that whistleblowing laws are in place, but only to the extent that they are in place to protect the worker who has already made a whistleblowing disclosure.
PIDA offers protection from detrimental treatment or victimisation from their employer to a ‘worker’ who makes a ‘qualifying disclosure’. To be afforded this protection, the worker must reasonably believe that they are acting in the ‘public interest’ and the worker must reasonably believe that the disclosure tends to show ‘past, present or likely future wrongdoing’. This brings us back to the meaning of ‘wrongdoing’.
PIDA tells us to look for the following categories to be afforded its protection:
• criminal offence
• failure to comply with an obligation set out in law
• miscarriages of justice
• endangering of someone’s health and safety
• damage to the environment
• covering up wrongdoing in the above categories.
A worker – and I use the word ‘worker’ deliberately as again it is a prescribed term and only those deemed to be workers can claim the protection of PIDA – should understand that they do not have to provide evidence of wrongdoing, a suspicion is adequate and they do not have to make their report in writing. They do not have to give their names under UK legislation where anonymous disclosures are allowable, although they must understand that anonymity can sometimes hinder the investigation of their concern. Finally, a worker who makes a whistleblowing report which subsequently turns out to be malicious should understand that they are no longer protected by PIDA and they could be subject to disciplinary proceedings themselves.
We know that organisations are not legally required to put whistleblowing policies and procedures in place and we know that there is no obligation on organisations to investigate reports if they are made, but we do know that to do so would be beneficial to the organisation and worker alike. This weakness in the law is addressed by the Corporate Governance Code 2018 (the ‘Code’). For those companies listed on the London Stock Exchange, the Code has put the subject of whistleblowing back to the top of the agenda. It explicitly states in Principle E that: ‘The workforce should be able to raise any matters of concern’ and further in Provision 6 the responsibility rests firmly at the board of directors door. The Principle states: ‘the board should routinely review this and the reports arising from its operation. It should ensure that arrangements are in place for the proportionate and independent investigation of such matters and for follow-up action’.
Last year the EU announced new rules that will require all organisations to have reporting channels for whistleblowers, to investigate and to respond to whistleblowing issues raised in a timely manner. Will the UK be lagging behind with its whistleblowing legislation?
If the organisation welcomes whistleblowing disclosures then isn’t it better that the whistleblower comes to the organisation in the first place so that they can do something about it and not to wake up to the news on their twitter news feed?
Organisations of all types can look to see whether they have effective framework in place to allow their workforce to make relevant disclosures confidentially and to make them anonymously in the UK if they choose to do so.
They can look to see whether they have a sufficiently clear policy on whistleblowing which is available to their entire workforce. The organisation could ask itself whether it has communicated the meaning of whistleblowing to its workforce clearly and in simple terms.
A policy on an intranet page is not sufficient to change the culture of a company. Attitude change and acceptance happen with engagement and communication. Has it provided relevant training to its managers as well as to key HR professionals and heads of department? Does the organisation have a system in place which allows its workforce to make reports confidentially?
In practice, the difficulty for organisations and whistleblowers alike is identifying a genuine whistleblowing disclosure from a grievance or a concern. A one-size-fits-all approach isn’t available for dealing with whistleblowing concerns but equally one wouldn’t work either. Organisations can see whistleblowing as a positive and not a negative.
They can welcome the discourse with their workforce and encourage openness and transparency. They can make their whistleblowing policy and processes clear and understandable.
It seems to me that the whistleblower has to know an awful lot about the 20 year old law before they can seek the protection that it offers. The whistleblower has to make assumptions that if it came down to it, an Employment Tribunal would agree with them that the wrongdoing that they have identified is indeed in the public interest, because if it doesn’t agree and the Employment Tribunal doesn’t believe the wrongdoing is in the public interest then that blanket of protection disappears. It is a huge leap
of faith and it requires bravery and courage. It might be the nature of the beast but is it too high a burden for the well intentioned would be whistleblower?
We can only be responsible for the environment that we operate in. If we are on the board of directors, a company secretary or a governance professional then we should ask ourselves, do
we have a culture where our workers feel supported and encouraged to speak up?
In practice, if a company isn’t prepared to open its doors and welcome whistleblowers in, if it is not confident in its own systems and controls, in its own practices, if there is a systemic failure of governance, then the likelihood is that we might be reading about them in the media after all.