Whistleblower Protection and the Fight against Corruption

 

Whistleblower Protection and the Fight against Corruption

• Whistleblower protection is essential to encourage the reporting of misconduct, fraud and

corruption. The risk of corruption is significantly heightened in environments where the reporting of

wrongdoing is not supported or protected. This applies to both public and private sector environments,

especially in cases of bribery: Protecting public sector whistleblowers facilitates the reporting of

passive bribery, as well as the misuse of public funds, waste, fraud and other forms of corruption.

Protecting private sector whistleblowers facilitates the reporting of active bribery and other corrupt acts

committed by companies.

Encouraging and facilitating whistleblowing, in particular by providing effective legal protection

and clear guidance on reporting procedures, can also help authorities monitor compliance and detect

violations of anti-corruption laws. Providing effective protection for whistleblowers supports an open

organisational culture where employees are not only aware of how to report but also have confidence in

the reporting procedures.

1. Clear legislation and an effective institutional framework are in place to protect from

discriminatory or disciplinary action employees who disclose in good faith and on reasonable

grounds certain suspected acts of wrongdoing or corruption to competent authorities.

Examples of best practices in support of this principle could include, inter alia:

• Enactment of dedicated legislation in order to ensure legal certainty and clarity, and to

avoid a fragmented approach to establishing whistleblower protection;

• Requirement or strong encouragement for companies to implement control measures to

provide for and facilitate whistleblowing (e.g. through internal controls, ethics and

compliance programmes, distinct anti-corruption programmes, fraud risk management,

etc.).

2. The legislation provides a clear definition of the scope of protected disclosures and of the

persons afforded protection under the law.

Examples of best practices in support of this principle could include, inter alia:

• Protected disclosures include: a violation of law, rule, or regulation; gross

mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific

danger to public health or safety; or types of wrongdoing that fall under the term

“corruption”, as defined under domestic law(s);

• Individuals are not afforded whistleblower protection for disclosures that are prohibited

by domestic laws in the interest of national defense or the conduct of foreign affairs,

unless the disclosures are made in the specific manner and to the specific entity/entities

those domestic laws require;

3. The legislation ensures that the protection afforded to whistleblowers is robust and

comprehensive.

Examples of best practices in support of this principle could include, inter alia:

• Due process for both parties (the whistleblower and the respondent), including, inter

alia, the need for protecting confidentiality;

• Protection from any form of discriminatory or retaliatory personnel action, including

dismissal, suspension, or demotion; other disciplinary or corrective action; detail transfer,

or reassignment; performance evaluation; decision concerning pay, benefits, awards,

education or training; order to undergo medical test or examination; or any other

significant change in duties, responsibilities, or working conditions;

4. The legislation clearly defines the procedures and prescribed channels for facilitating the

reporting of suspected acts of corruption, and encourages the use of protective and easily

accessible whistleblowing channels.

• Examples of best practices in support of this principle could include, inter alia:
• Provision of protection for disclosures made internally or externally;
• Establishment of internal channels for reporting within the public sector;
• Strong encouragement for companies to establish internal reporting channels;
• Protection afforded to disclosures made directly to law enforcement authorities;

5. The legislation ensures that effective protection mechanisms are in place, including by

entrusting a specific body that is accountable and empowered with the responsibility of

receiving and investigating complaints of retaliation and/or improper investigation, and by

providing for a full range of remedies.

Examples of best practices in support of this principle could include, inter alia:

• Appointment of an accountable whistleblower complaints body responsible for

investigating and prosecuting retaliatory, discriminatory, or disciplinary action taken

against whistleblowers who have reported in good faith and on reasonable grounds

suspected acts of corruption to competent authorities;

 

6. Implementation of whistleblower protection legislation is supported by awareness-raising,

communication, training and periodic evaluation of the effectiveness of the framework of

protection.

Examples of best practices in support of this principle could include, inter alia:

• Promoting awareness of whistleblowing mechanisms, provide general advice, monitor

and periodically review the effectiveness of the whistleblowing framework, collect and

disseminate data, etc.;

• Raising awareness with a view to changing cultural perceptions and public attitude

towards whistleblowing, to be considered an act of loyalty to the organisation;

Brief overview of the benefits of public sector whistleblower protection

• Encouraging the whistleblowing on acts of suspected corruption is essential in safeguarding

public interest and promoting a culture of public accountability and integrity. Public officials have

access to up-to-date information concerning their workplaces’ practices, and are usually the first to

recognise wrongdoings. In most jurisdictions, it is an obligation for them to report corruption and other

malpractices.

• As a result, encouragement of whistleblowing must be associated with the corresponding

protection for the whistleblower. In the public sector, public servants need to know what their rights and

obligations are in terms of exposing actual or suspected wrongdoing within the public service.

• Although in some countries whistleblower protection is still in its infancy, it is increasingly

recognised as an essential anti-corruption mechanism and a key factor in promoting a culture of public

accountability and integrity. For example, in OECD countries between 2000 and 2009, legal protection

for whistleblowers grew from 44% to 66%.

 

Private sector whistleblower protection: Legal provisions and voluntary measures

• Domestic legal provisions expressly devoted to the protection of whistleblowers in the private

sector are less common than for the public sector. However, the private sector is increasingly taking

voluntary measures to create internal channels for safely and confidentially reporting misconduct. This

could be for a number of reasons.

• There is no consensus as to which approach works best for ensuring the protection of private

sector whistleblowers: enacting domestic legal provisions, promoting voluntary measures among the

private sector, or combining the two. For example, the International Chamber of Commerce (ICC) warns

against over-regulation of private sector whistleblowing regimes, emphasising that self-regulation and

voluntary integrity programmes provides for effective protection of corporate interests and adaptability

to different workplace environments.

Whistleblowers and protection of sources

• The Survey indicated that whistleblowers are often the first source of information for

journalists reporting on corruption stories. Whistleblowers turn to journalists for various

reasons including to protect their identity, to bring issues of concern to the attention of the

public or government, or in the absence of effective responses by law enforcement or

employers. One journalist noted that reporting to the media can be more effective for a

whistleblower than reporting to law enforcement.

• Whistleblower protection was considered the second most valuable support for journalists

investigating corruption (63%), behind strong editorial board backing (77%). Journalists also

noted that their sources can also work for law enforcement agencies, and considered that these

sources should be protected as any other whistleblower. The media plays a potentially vital

role in de-stigmatising whistleblower reporting.