probability of external whistleblowing if the initial concern had not been responded to. Employees who came into frequent contact with their immediate supervisor were more likely to get a positive response to their concerns, and to be less likely to go outside the organization with their concerns (Skivenes and Trygstad 2010).
So the wider context counts when it comes to the likelihood that an employee will raise concerns. If wrongdoing is sufficiently bad, if it is observed, and if the employee thinks that by raising a concern they can stop it, without suffering personal detriment and harm, they are more likely to act. Employment protection, the right and support to raise concerns, and a workplace culture where it is expected, rather than mandated, that employees will raise concerns and be supported when they do, significantly influence the likelihood of reporting. Employees in Skivenes and Trygstad’s study were working in the Norwegian public sector, where there is a high rate of trade union membership (86 per cent of public sector employees are unionized). In Norway, employees have a constitutional right to raise any concern not deemed confidential in law, and they have the right to report misconduct. Compared to the US and UK, these employees have strong protection against unfair dismissal. Employee rights in Norway support whistleblowing activity: ‘Norwegian employees, to a great extent, perceive their whistleblowing activity as positive and effective’ (Skivenes and Trygstad 2010, p.1091).
The Australian survey (Brown 2008), referred to earlier, found the decisions of public sector employees to blow the whistle were strongly influenced by the culture of their organization, as well as by the perceived seriousness of the wrongdoing and by their belief as to whether reporting the wrongdoing would serve any good purpose. Reporting was more likely when employees believed the wrongdoing was serious and frequent, when they had direct evidence of the wrongdoing, and when it affected them personally. If the wrongdoing involved a lot of people, or the perpetrators were senior to the whistleblower, then the employee was less likely to report (Brown 2008).
Reporting wrongdoing, and getting it put right, are very hard where bad or illegal practice is commonplace and tacitly tolerated, or where whistleblowing procedures feel like an obstacle course designed to trip up those bold enough to try and use them. When they are confident their concerns will be listened to, employees are more likely to speak out (Brown 2008). The main reasons for not reporting is a belief that nothing will be done about the wrongdoing, or that the employee will suffer reprisal – in other words, that the messenger will be shot while the message goes unheeded. Speaking truth to power is always a tough call.
UK WHISTLEBLOWING IN LAW
Providing legal protection to the whistleblower making a public interest disclosure has been the stated aim of statute internationally for some time. In the UK, the Public Interest Disclosure Act 1998 (PIDA) was intended to protect individuals who make certain disclosures in the public interest. Here, from a legal point of view, whistleblowing is justified if a worker has a reasonable belief that a type of wrongdoing specified in the legislation affects the public interest. In changes implemented under the Enterprise and Regulatory Reform Act 2013, UK whistleblowers have protection from victimization by co-workers, as well as employers.
In the UK, the operative provisions of PIDA are contained in Part IVA of the Employment Rights Act 1996. They apply to both the public and private sector and cover most, but not all, workers. (In 2016, members of the armed forces, intelligence services and volunteers do not have protection under the Act’s provisions. Some self-employed contractors may have protection under PIDA, although most do not.) There is no statutory right to disclose in the UK, although a contractual right may exist. Types of disclosure that can give rise to employee protection are called ‘qualifying disclosures’ and cover matters such as where the worker reasonably believes the concern might be a crime; or where there has been a failure to comply with a legal obligation; or one concerning potential damage to the environment; or danger to the health and safety of a person. Most protection under this law is given to those who disclose information internally. However, workers can disclose to a person prescribed in the relevant regulations if they reasonably believe that the matter falls within that person’s remit, and that the information and any allegation contained in it are substantially true. Wider disclosures can be made if the worker fulfils additional requirements – for example, they are not disclosing for personal gain; they have already disclosed the information to the employer (unless they believe they would suffer detriment, or the employer would destroy evidence if they were alerted). Detailed provision is also made for the external disclosure of information about exceptionally serious wrongdoing. The worker has a right not to suffer detriment for making a protected disclosure. But retaliation against the whistleblower is not a criminal offence in the UK, and it is the case that whistleblowers may find themselves vulnerable to victimization and dismissal following their speaking out.
How far these legal provisions have protected UK employees is a moot point. De Maria (2006, p.647) called whistleblowing legislation the ‘state management of dissent’, and it is certainly the case that a number of NHS whistleblowers have found their concerns managed by their employer without any protection from whistleblowing legislation. Lewis (2008) regarded PIDA’s protection of whistleblowers as inadequate. He argued that employers should be under a statutory duty to establish and maintain effective reporting procedures; and that employers should not impose a contractual duty upon employees to report in the absence of a proper procedure. Lewis called for legislation to relieve people of civil or criminal liability if they make a protected disclosure. Disclosures are only protected if the person reasonably believes them to be correct: should that reasonable belief turn out to be incorrect, defamation proceedings can be brought against a worker making the disclosure. That person might then have to rely on the defence of qualified privilege (which permits certain persons to make statements that would be considered slander or libel if made by anyone else). Lewis (2008) has suggested that a defence of absolute privilege should be available to the whistleblower, as well as specific statutory protection against post-employment detriment – for example, an employer refusing to provide a reference for the whistleblower.
As it stands, PIDA is convoluted law. A person contemplating making a protected disclosure under it is well-advised to take legal advice before, and not after, raising the concern. The Health Committee of the House of Commons acknowledged some of the Act’s limitations. While PIDA is supposed to provide protection against employee detriment, and its effect to be deterrent rather than restorative, its complexity is such that success in a case brought under PIDA can by no means be guaranteed (Pattenden 2003; HOC 2015).
Over and above the provisions and limits of this particular statute, there are contrasting opinions on what whistleblowing legislation and duties exist for. One perspective is that of the employee acting in line with their individual conscience to counter wrongdoing (like, say, the heroic slayer of a mythical dragon). Less seductive, is the view that whistleblowing statute serves as a management tool to control the workforce (Tsahuridu and Vandekerckhove 2008). The first view regards whistleblower protection as promoting individual responsibility and autonomy in the workplace. The second understands whistleblower protection to be de facto protective cover for the organization, as it offloads responsibility for holding the moral compass in the workplace from employer onto employee.
In evidence to the Health Committee of the UK House of Commons (HOC 2015), the chief executive of the UK charity PCaW said that PIDA acted more as a deterrent than a remedy: if an employee has to have recourse to PIDA’s provisions, then his or her employment prospects are already substantially impaired. Organizational whistleblowing policies may use PIDA as a legal firewall – do this, at the right time, in the right way, in the right sequence, or face the consequences, if you fancy your chances taking us on.
PARADOXES IN WHISTLEBLOWING POLICY AND PROCEDURES
To be used and useful, people need to know about, understand and have confidence in an organization’s whistleblowing policy, and in those who manage it. It requires a lot of the employee, in fulfilling their side of the employment contract, when they find they have to negotiate, with all the care of someone ploughing a field of activated landmines, the tripwires of their employer’s whistleblowing
