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WHY IS WHISTLEBLOWING IMPORTANT AND ON WHAT

PRINCIPLES SHOULD PROTECTIVE LEGISLATION BE BASED?

David Lewis,Professor of Employment Law,MiddlesexUniversity, London

d.b.lewis@mdx.ac.uk

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WHY IS WHISTLEBLOWING SO IMPORTANT?

1. PROMOTES THE RIGHT TO LIFE –avoidance of physical disasters.

2. AN IMPORTANT TOOL IN THE FIGHT AGAINST CORRUPTION – which itself contributes to poverty.[Art. 33 of UN Convention on Corruption 2003 “shall consider”..“appropriate measures to provide protection”.]

3. CORPORATE GOVERNANCE /RISK MANAGEMENT– early alerts allow speedy internal rectification of wrongdoing.

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FREEDOM OF SPEECH

Article 10(1) of the European Convention (ECHR) states that:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...”.

However, this does not provide blanket support for whistleblowers because Article 10(2) states that:

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FREEDOM OF SPEECH (2)

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

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POSSIBLE AIMS OF WHISTLEBLOWING LEGISLATION?

1. PROTECT DISCLOSERS

2. ENCOURAGE DISCLOSURES

3. PROVIDE MEANS FOR DISCLOSURES

4. INVESTIGATE DISCLOSURES

5. DEAL WITH IMPROPRIETY

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WHO SHOULD BE COVERED BY WHISTLEBLOWING LEGISLATION?

• PRIVATE AND PUBLIC SECTORS?

• EMPLOYEES, WORKERS, GENERAL PUBLIC?

• SECURITY/ARMED SERVICES?

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HOW SHOULD WRONGDOING BE DEFINED FOR THESE PURPOSES?

Section 43B(1) OF THE UK’S EMPLOYMENT RIGHTS ACT 1996 identifies the following as qualifying disclosures:

(i) a criminal offence; (ii) a failure to comply with any legal obligation; (iii) a miscarriage of justice; (iv) danger to the health and safety of any individual; (v) damage to the environment; (vi) the deliberate concealment of information tending to show any of the matters listed above.

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IS THE WHISTLEBLOWER’S MOTIVE RELEVANT?

• THE PROBLEM OF GOOD FAITH – FOCUS IS ON THE MESSENGER RATHER THAN THE MESSAGE; BURDEN OF PROOF; UNCERTAINTY MAY INHIBIT DISCLOSURES.

• HONEST BELIEF ON REASONABLE GROUNDS / REASONABLE SUSPICION

• LEGAL AND DISCIPLINARY SANCTIONS FOR KNOWINGLY MAKING A FALSE ALLEGATION.

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ANONYMITY AND CONFIDENTIALITY

• ANONYMITY -

DIFFICULT TO INVESTIGATE; IDENTITY MAY BECOME OBVIOUS; BUT BETTER THAN NO DISCLOSURE.

• CONFIDENTIALITY –

CANNOT BE GUARANTEED IN SOME CIRCUMSTANCES

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SOME KEY PRINCIPLES

1. A RIGHT TO REPORT BUT EXPECTATION RATHER THAN DUTY TO REPORT.

2. PROTECT ALL STAGES OF DISCLOSURE –ATTEMPTS etc

3. PROTECT AGAINST DISCRIMINATION IN HIRING AND POST-EMPLOYMENT AS WELL AS DETRIMENTS AT WORK.

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SUGGESTED PRINCIPLES(2)

4. STATUTORY DUTY ON EMPLOYERS TO ESTABLISH AND MAINTAIN EFFECTIVE REPORTING PROCEDURES (with guidance on contents)

5. AN AGENCY SHOULD BE ESTABLISHED (to receive disclosures, arrange for their investigation by an appropriate authority, provide advisory and counselling services, protect whistleblowers from reprisals, educate generally).

6. PROPER REMEDIES FOR VICTIMISATION (compensation, reinstatement or transfer if preferred).