David Lewis is Professor of Employment Law at Middlesex University and convenor of the International Whistleblowing Research Network. He has published articles on whistleblowing in both law and management journals in several countries and has contributed to and edited three books on this subject.
In this fascinating Q and A he discusses whistleblowing policy, the future of whistleblowing, domestic and international legislation and more.
What’s your opinion of the state of play of whistleblowing in the UK?
Whistleblowing procedures are now very common in the public sector but less so in the private sector. However, this may change rapidly as a result of the Bribery Act 2010 which provides a complete defence to the charge of failing to prevent bribery if an organisation can prove that it had “adequate procedures”.
Research conducted by Public Concern at Work shows that many people are unaware that there is some employment protection for whistleblowers so greater efforts are needed to publicise and explain the legislation. Despite the fact that the relevant statute has been in force since 1999, I suspect that many potential whistleblowers are still choosing to remain silent about serious wrongdoing. This cannot be in the public interest.
And overseas?
Other countries are increasingly introducing legislation. Some of this is modelled on the UK but quite a few statutes are more sophisticated. For example, the UK only aims to protect whistleblowers whereas elsewhere there are attempts to encourage disclosures and to ensure that concerns are properly investigated. A statutory obligation on employers to maintain whistleblowing procedures is becoming more common. Research in the US demonstrates that in practice rewards promote whistleblowing so some Governments have started to make provision for them.
Do you think whistleblowing works?
Although the process of whistleblowing is often seen as problematic, we should bear in mind that there is evidence from a large scale research project in Australia that whistleblowing can be successful. The main reasons people give for being unwilling to report wrongdoing are fear of retaliation and a belief that raising a concern will make no difference. If employers can create a positive culture by committing to a confidential reporting procedure which complies with good practice and can demonstrate that they value disclosures and will protect disclosers, there is no reason why internal whistleblowing should not work. Inevitably, things will go wrong occasionally so employers need to contemplate external disclosures. Again, if this is managed properly, for example by suggesting appropriate recipients of information, it should be possible to avoid destructive media or internet disclosures.
Do you think the legislation in place (Public Interest Disclosure Act) is robust enough to encourage and protect whistleblowers?
As previously mentioned, the legislation in this country only seeks to protect workers who choose to blow the whistle. It does not require employers to have a whistleblowing procedure and does not normally oblige workers to raise concerns. If we want to encourage disclosures about wrongdoing there needs to be more emphasis on the message rather than the messenger. At present the “good faith” requirement may deter some important disclosures because potential whistleblowers may be uncertain about whether or not they will be protected. The legislation also contains other expressions that are undefined and problematic, for example, “substantial truth” and “exceptionally serious failures”.
What advice do you have for organisations that have adopted a whistleblowing policy?
In my opinion top management needs to demonstrate a commitment to a culture of openness and should ensure that their organisation has a procedure that complies with good practice as set out in the 2008 BSI Code. For example, it should indicate what concerns should be raised, how and with whom; it should guarantee confidentiality as far as possible and give undertakings about retaliation; it should provide for investigations where appropriate and for a discloser to receive feedback about the outcome. Procedures should be introduced after consultation with union or other worker representatives, be well publicised and regularly reviewed.
What problems are caused by the portrayal of whistleblowers in the media?
We need to bear in mind that successful whistleblowing is rarely newsworthy, except perhaps when an individual receives a large reward. A particular problem so far as I am concerned is that the media have failed to convey the fact that some external whistleblowing is protected by UK legislation whereas it is highly unlikely that internet disclosures will be covered.
What changes do you see happening in the next 12-18 months?
As a result of the changes in the unfair dismissal provisions, many commentators are expecting that more whistleblowing claims will be brought. Apart from discrimination complaints, workers who lack two years’ service will have no other mechanism of having their dismissal case heard. Because it is an issue of enlightened self interest, I anticipate that more employers will introduce whistleblowing procedures and ‘hotlines’ and will publicise their arrangements on websites.
If you would like to find out more about how confidential whistleblowing hotlines can help your business please contact scott.bridgen@expolink.co.uk
The awards season is nearly upon us and with it the thrill and promise of those deserving, or otherwise, being recognised for outstanding contributions and $600k dresses. Never to be ones to miss out on a good party, we at Expolink have compiled our own whistleblowing awards.
While by no means an exhaustible list we have gone some way to honouring (and dishonouring) some of the folks who make the world of whistleblowing a more interesting place.
At 15, Enron was just a teenager when, as US’s seventh largest company, it employed 21,000 staff in 40 countries. This success, it transpired, was based on a premise of false accounting and fraud. Sherron Watkins, VP of Corporate Development at Enron was the first on the scene, alerting CEO Kenneth Lay to other whistleblowers and the seismic holes in the company reports. Critics say that Watkins’ actions don’t necessarily constitute whistleblowing as she simply gave her boss a nifty escape route from the impending meltdown – either way, she went on to become one of Times People of the Year, 2002, alongside two other whistleblowers Cynthia Cooper of WorldCom and Coleen Rowley of the FBI.
Among Enron’s dubious accolades of largest audit failure and bankruptcy re-organisation in US history at that time, the play by Lucy Prebble, based on the scandal won a plethora of international awards – so, worked out well for some.
Manning was arrested in May 2010 and charged two months later for supplying an estimated 250,000 diplomatic cables to Wikileaks which were duly republished by several left-leaning papers and on the Wikileaks website. An acquaintance, Adrian Lano, subsequently blew the whistle on Manning, proving that one good turn deserves another. It is unclear whether Manning had any kind of personal relationship with Wikileaks high priest Julian Assange, but his organisation has been vocal in support of Manning’s actions saying he has “single-handedly changed hundreds of thousands of people’s lives for the better.” Conversely, the White House branded his actions as “terrorism”. Assange for his part is embroiled in a legal battle of his own for alleged sexual assault -
Manning’s trial continues…
It seems a little unfair to award one of these prized trinkets to an established actor, but back in July 2011 we were thrilled to discover that Grant had enjoyed a chance encounter with News of the World reporter Paul McMullan and secretly taped admissions of wide-spread phone hacking at the paper. Grant went on to charm all at the Levenson Enquiry and despite being branded as a “screechy, sanctimonious little (bleep)” by the not-at-all screechy Piers Morgan, seems to be enjoying some nice, credible PR and perhaps a little more peace from the press.
Jeffrey Wigand’s whistleblowing endeavours were immortalised in the Russell Crowe vehicle, The Insider. Whilst working at a large tobacco manufacturer Wigand discovered his bosses were manipulating their product blend to increase its addictive capacity. Wigand told all on the US TV show, 60 Minutes, and his employers responded with a law suit to prevent him testifying in open court. The company and others of its ilk were left fuming (ahem) when various states began their own litigations to recoup losses to public health initiatives caused by tobacco-related illness.
See also: Linda Tripp of Clinton/Lewinsky fame. More of a sticky beak than a whistleblower, but makes this list for inciting a hugely divisive argument regarding her motivations for revealing details about the affair. The movie deal it is claimed she was anticipating for her part in the scandal is yet to materialise…
Mark Felt, the whistleblower and former FBI agent was the infamous informant of Washington Post journalists Carl Bernstein and Bob Woodward, whom together brought down the Nixon administration. Bernstein and Woodward published a series of articles on the Watergate scandal revealing corrupt activity in the Nixon stable, later a book and inevitably a film, All The President’s Men. Felt’s disclosures lead to Nixon’s resignation and jail sentences for a number of senior White House employees. Felt went by the codename ‘Deep Throat’ and enjoyed anonymity until 2005 when he confessed all in an interview with Vanity Fair, 31 years after Nixon’s resignation.
It is not always the high profile cases that have, or should have, the most enduring legacy. ‘Though Leslie Chapman was well known throughout Britain in the ‘70s, regrettably he is little remembered to this day. As a government employee he took the exceptional step of breaking Civil Service convention, if not the Official Secrets Act, and speaking out through a series of books about waste and extravagance in the British Civil Service. He then broadened his area of concern to local government and nationalised industry and, despite undoubtedly, putting a few noses out of joint along the way, he was deliberately placed on the board of London Transport as a result of his first book of revelation, tasked with rooting out abuses there. The recent raft of MP expenses scandals shows that such activities are still rife, making it all the more unfortunate that Chapman’s legacy is not secured in our national and political psyche and that decent governance systems have not always prevailed.
In the next in our series on international whistleblowing and corruption we focus on the fascinating Republic of Cuba. From Batista through the revolutions of Raúl and Fidel Castro to more recent crackdowns on white collar or guaybera crime, Cuba has been, and will undoubtedly remain, a compelling study in politics and political change.
