afforded by whistleblowing legislation in place in their jurisdiction at the time of the disclosure.
CHAPTER 2
WHISTLEBLOWING
GOOD, BAD AND UGLY
Commentary, reaction, blame or praise about whistleblowing – take your pick – are not generally informed either conceptually or empirically. Whistleblowing can crop up in casual conversation when a whistleblower case hits the headlines. The general public may have a view, often of bewilderment, about the behaviour of those running the bank, corporation, health or social care organization that allowed the corruption, poor care or illegal activity to occur in the first place and, even more disconcertedly, of the retribution heaped on the whistleblower after their exposure of it. It is hard for the outside observer to grasp what appears to be the irrationality, if not insanity, of the denial/defence/blame response of large organizations to whistleblowers and the matters they raise concerns about. It seems to be even harder for those organizations to think more carefully about how they respond to the whistleblower.
This chapter provides an overview of whistleblowing, the whistleblower, and of what they may anticipate after they blow the whistle. First, some of the fables, fantasies and facts around whistleblowing and the public reaction to whistleblowers are discussed. Next, what whistleblowing is, both conceptually and practically, is considered, followed by, third, a review of the characteristics of whistleblowers. Fourth, what is involved for the whistleblower in weighing up the costs and benefits of speaking out is outlined, along with the double bind that is the requirement on the health or social care professional to report wrongdoing, and the detriment they personally may suffer when they do. The fifth part of the chapter, on UK whistleblowing legislation and policy, is a bridge (or breathing space) before the final section. This looks at what happens when people whistleblow, particularly the retaliation and retribution they may suffer, notwithstanding any protection under law they may have. Turning a blind eye to the possibility of retaliation is like turning away from the wrongdoing itself. Both are denial. Better for the whistleblower, and their managers, to face into this, than pretend it doesn’t exist.
FABLES, FANTASIES AND FACTS
Media coverage of whistleblowing is fond of constructing a narrative of the lone hero taking on organizations, agencies, companies (as Time magazine’s 2002 ‘Persons of the Year. The Whistleblowers’ (Lacayo and Ripley 2002)) or sometimes an entire industry (such as the scientist Jeffrey Wigand’s exposure of tobacco (Armenakis 2004)). This storyline plots the whistleblower’s selfless drive to counter injustice and corruption, to stop harm and suffering being visited on people, animals, and the world in which we live, by the actions or inaction of organizations, corporations or professions. The ‘selfless heroism’ portrayal of the whistleblower and the whistleblowing dovetails nicely with the individualistic, ‘small person against the big corporation’, David v. Goliath cultural motif that sells front covers and makes blockbuster films. Goodies and baddies, heroes and villains, right and wrong, make good copy. It is a neat duality that has little or no concern with the lifelong, life-changing, personal, financial and human costs to the whistleblower and their family, or to the victimization, retaliation or ostracism they may well live with for the rest of their lives as a consequence of their raising concerns and speaking out.
In this vein, Grant (2002) wondered if whistleblowers were ‘saints of secular culture’. Whether saint or sinner, the whistleblower and whistleblowing encapsulate conflicting and conflicted social values. We love the underdog taking on the organization, but hate sneaks, snitches and grasses. We revere the charismatic individualist, but at work want everyone to keep their head down, get on with their job and, above all, fit in with the team. There is public outrage about domestic violence, yet banging and shouts from next door are ignored and the TV turned up. We elevate ‘family’ and worship family life, but anyone speaking out about abuse and mistreatment by a family member had better watch out. Not seeing, not hearing and not speaking out about injustice coexist with relief that someone else did, and we’re glad it wasn’t us.
The popular narrative places great expectations on the whistleblowing act. The subtitle of Glazer and Glazer’s (1989) book The Whistleblowers was A New Tradition of Courageous Dissent. Mansbach (2011) was of the view that whistleblowing protects the community, promotes the public good and extends the rule of law. Lewis, Brown and Moberly amplified this: ‘…whistleblowing is now established as one of the most important processes – if not the single most important process – by which governments and corporations are kept accountable to the societies they are meant to serve and service’ (Lewis, Brown and Moberly 2014, p.1; emphasis in original). The accountability of huge corporations, industries and governments is, in a deft twist of logic, outsourced to the individual whistleblower, who also, of course, depends on that institution for their livelihood. The challenge that whistleblowing might once have presented to the company is thus co-opted and incorporated into huge organizations and governments, who then claim self-regulating ‘social responsibility’ (Pemberton et al. 2012).
WHAT WHISTLEBLOWING IS
Despite periodic media coverage, the social phenomenon that is ‘whistleblowing’ is underdeveloped both empirically and theoretically in the social sciences (Miceli and Near 2005; Pemberton et al. 2012). Internationally, and historically, most published studies and research have been carried out by US academics on US organizations (although that is now changing). Caution is needed before transferring lessons and learning from that economy and culture, with its particular approach to labour law, to other jurisdictions with very different legislation, legal protection, and approaches to employee rights protection in the workplace. There is a dearth of systematic analysis of the relationships between organizational characteristics that help whistleblowing: aggressive, neo-liberal, competitive and highly individualistic economies and economic frameworks such as in the US, are very different from the labour market and employment practices of, say, Norway (Pemberton et al. 2012; Skivenes and Trygstad 2010).
‘Whistleblowing’ itself is a US term, although it may have British origins in the practice of old-style police officers blowing a whistle if they suspected wrongdoing (Evans 2008). Whistleblowing is not complaining, suing or arguing. A whistleblower discloses information across a particular organizational boundary, whether internal (say, from one part of the organization to another) or external (from within the organization to the public domain) (Bouville 2008; Evans 2008). In the UK, whistleblowing in its legal sense is action taken by an employee under the Public Interest Disclosure Act 1998 (PIDA). Under this law, which is discussed below, a member of staff may assume protection against subsequent harassment or dismissal by employers when the employee makes a qualified disclosure of fraud or malpractice to a designated officer.
The commonly used definition of whistleblowing was set out by US academics Near and Miceli in the 1980s: ‘…the disclosure by organization members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organizations that may be able to effect action’ (Near and Miceli 1985, p.4). Skivenes and Trygstad (2010) widened this to include all forms of communication where critical voices are raised about wrongdoing in the presence of someone who can stop the misconduct; and that includes day-to-day communication and critical discussions between managers and employees that are part of work, or should be. Skivenes and Trygstad regarded Near and Miceli’s definition, above, as ‘weak whistleblowing’, or the first step taken when an employee raises concerns. They contrasted this with ‘strong’ whistleblowing, which ‘focuses on process and on cases where there is no improvement in, or explanation for, or clarification of the reported misconduct from those who can do something about it’ (Skivenes and Trygstad 2010, p.1077). In these cases, the employee has to report the matter again, hence Skivenes and Trygstad’s notion of ‘strong’ whistleblowing, or turning up the volume on raising concerns, not giving up, and going outside the organization with the matter.
For Jubb (1999), six elements were necessary for the act of whistleblowing:
1.the act of disclosure
