Whistleblowing and related concepts

Chapter 1: Definition of Whistleblowing

1.1.0 Introduction                          

In the last two decades, jurisdictions around the world have either enacted or exhibited commitment towards implementing legislations that protect whistleblowers. Studies in the United Kingdom (UK), the United States of America (USA) and EU Member States has shown that whistleblower legislation exists in the areas of consumer law, corporate law, financial regulation, and workplace relations law.[1]

Generally, the approach to promulgating and enforcing whistleblower protection laws vary significantly in different countries. In France, the Sapin 11 Act for instance, there is very little specific statutory protection for whistleblowers although the French National Commission for Data Protection and Liberties translated as Commission nationale de l’informatique et des libertés (CNIL) has the authority and legal responsibility to protect anyone who makes disclosures under whistleblowing procedures outline by employers. However, some jurisdictions like the United Kingdom have a unified approach to whistleblower protection. The country operates a single whistleblowing legislation, PIDA, which provides protection for private and public sector whistleblowers, as well as processes complaints covering a broad range of misconduct. In contrast, whistleblower protection laws in other jurisdictions such as the US are found in various sources, including: (a) federal and state law and (b) statutory and common law.[2]

Studies has shown the level of protection offered to whistleblowers in the United States depends on the type of employer, the misconduct, and the employee who blows the whistle. This chapter of the Thesis provides an analysis of whistleblower definition covered by legislation in those jurisdictions in order to identify several emerging issues for consideration. The purpose is to find a robust case for greater consistency in legal thresholds and operational requirements imposed by the PIDA, Dodd-Frank Act, the EU Directive, among others as Sarbanes Oxley Act (SOX) and False Claims Act. 

Recurring incidents of retaliatory actions against whistleblowers during the coronavirus era has shade further light on whistleblowing. Better understanding of the role of whistleblowers in reference to the definition has become very significant. Society’s expectations are changing, and social parameters are constantly evolving just like the pandemic. Whistleblowers role are becoming more politically and socially acceptable due to their involvement in revealing important information which otherwise would not be avail in public domain. There is an increasing appreciation that to say nothing is to be complicit with the wrongdoers. 

In seeking to critically analyse various definitions of whistleblowing, it is paramount to understand the premise under which a whistleblower is protected.  A “Protected Disclosure” refers to a legal protection accorded to whistleblowers from retaliation. It is an Act enacted to ensure that whistleblowing activities do not culminate in reckless lawlessness. A protected disclosure, thus, includes but not limited to any information about (a) criminal offences (b) failure to comply with legal obligations (c) miscarriages of justice (d) health or safety violations that endanger an employee or the general public (e) environmental degradation.  The first Part of the chapter judiciously analyse the definition of whistleblowing while the second Part addresses the correlation between the definition and Covid-19 pandemic.

1.1.1 Definition of Research Terms

                Near and Miceli define ‘whistleblowing’ as ‘the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers, to persons or organisations that may be able to effect action.[3] There are several definitions of whistleblowing that have been put forward, however, this definition embraces many aspects of the subject matter. The definition deduced four essential process for whistleblowing (the whistleblower, the wrongdoing, the organisation and the complaint recipient) by the authors.

               From the definition, a former or current employee for numerous reasons can decide to expose misconduct in an organisation. Loyalty can be a fundamental reason to act in accordance with organisational missions, goals, values and codes of conduct for organisation effectiveness. Importantly, whistleblowing can also be attributed to a pro-social behaviour, with a clear intension of benefiting other persons such as colleagues and the general public. A whistleblower might decide to report a misconduct as a result of their inability to influence any change in the organisation. Anonymous reporting can be adopted by a whistleblower in order to avert retaliation. Also, the duty of a whistleblower in the job role can necessitate them to blow a whistle, however, they can equally be put under pressure not to disclose any wrongdoing.

        The other attribute of the definition is the nature of the wrongdoing and the potential consequences that largely determines the decision to blow the whistle. Characteristics of the wrongdoing can have significant impact whether to make known of any misconduct.  Prior to blowing the whistle, the perceived severity of the misconduct can foster the determination to report them after weighing the option. Likely types of wrongdoing include but not limited to violations of criminal law, violation of regulations, actions that result in physical harm and financial harm. Violations of significant magnitude would probably attract whistleblowing. Misconduct within the authority of the organisation can be acceptable by the organisational member precluding the whistleblower that can oppose the illegitimate acts.

         Another core element of the definition is the type of organisation in which the misconduct is reported. Responding to whistleblowing in organisation vary considerably, private sectors respond in a different manner than public sector which can be attributed to a cultural sector specific.  Organisation effectiveness can be determined by the way it respond to whistleblowing, reported misconduct that is acted upon swiftly can correct wrongdoing promptly and build employees confidence. However, unconducive working environment imbedded with dismissive paradigm might warrant whistleblowing. At such, employees are likely to face restrictions and they can be silent in reporting any misconduct especially when an organisation is intolerant of dissent.

       The final element in assessing the definition is how misconduct is reported internally in organisation to a supervisor, co-workers or to designated recipient such as ombudsperson. On occasion, when the disclosure is made to an external body, such as the government, the press or a law enforcement agency, it is said to be an external whistleblowing. This element of the whistleblowing process is arguable the most crucial one, as the recipient of the complaint determine the next line of action. The outcome of the complaint from the recipient within and outside the organisation might be different. External recipient is likely to undertake thorough investigation for positive outcome. While the internal recipient investigation will be determinant on the culture of the organisation or the procedural nature of whistleblowing in the organisation.  

1.1.2. Criticism of the definition

The authors identified crucial issues that can foster reporting of misconducts in an organisation, however, other several challenges were not acknowledged. Near and Miceli[4] ignored the moral ethics view of whistleblowing. The scholars also referenced theories of motivation, power and dependency in the study but failed to emphasize financial rewards. Moreover, defining whistleblowers as ‘people without authority or legitimate power’ who must rely on other informal bases of power to change certain activities deemed illegal, unfair or inappropriate within their organisation is wrong on the basis that senior auditors, board members, ombudsmen or top management officials can blow the whistle on their own companies/employers either internally or externally[5].

   However, Near and Miceli found that whistleblowing mainly occurs when employees or former employees believe they have proof of organisational wrongdoing. This assertion negates the fact that disclosures on perceived or actual wrongdoings are acceptable for further investigations.  Near and Miceli also remarked that employers usually mount pressure to persuade employees with explicit or implicit threat of retaliatory actions if they insist on making disclosures to external authorities. But there are certain legal provisions in Whistleblower Protection Laws that cover circumstances where an employee reports directly to external authorities against existing guidelines established within the organisation, if any[6]. However, the scholars emphasized on the importance of institutionalising hotlines to enable anonymous reporting[7].

     Their work titled “Organisational Dissidence: The Case of Whistleblowing” is basically flawed for asserting that ‘whistleblowing is an act of dissidence’ and describing it as ‘somewhat analogous to civil disobedience.’

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[1] Abazi V. ‘Whistleblowing in Europe: A New Era at Legal Protection’ (Cambridge 2019) 44

[2] European Commission. ‘Whistleblower Protection: Commission sets new EU-wide rules’ (Press Release 2018), https://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54254

[3] Miceli, M.P., Near, J.P & Martocchio, J.J. (Ed.). ‘Standing Up or Standing By: What Predicts Blowing the Whistle on Organizational Wrongdoing?’ (2005) 24; 95-136. Research in Personnel and Human Resources Management

[4] Hobby C. ‘Worker and Organisational Protection: The Future of Whistleblowing in the Gig Economy’ (Emerald Publishing Limited: Bingley 2020) 107-127

[5] Kenny K. ‘Whistleblowing. Toward a new theory’ (Cambridge MA: Harvard University Press 2019) 296

[6] Gramm, C.L. and Schnell, J.F. ‘Remedy-Seeking Responses to Discrimination: Does Management-Employee Similarity Matter?’ (Emerald Group Publishing Limited: Bingley 2016) 22; 69-103

[7] Young R. ‘An Empirical Examination of Psychological Climate and Internal Disclosure Policy Compliance’ (2016) 19; 127-154 Advances in Accounting Behavioural Research