Wednesday, May 29, 2024

Whistleblowing, in the fight against corruption and criminal conduct

Whistleblowing is defined as “Raising a concern about malpractice within an organisation or through an independent structure associated with it by the UK Committee on Standards in Public Life. With the increased levels of corruption evident in societies today, whistleblowing is relevant to all people and to all organisations, not only to those who are immoral, corrupt or criminal. This is due to the fact that most businesses, public bodies and government departments face the risk of illicit activity or of unwittingly harbouring corrupt individuals. If and when such a risk arises, the people best placed to observe and report wrongdoings would be those working within the organisation, however, they have the most to lose should they do so.

Unless culture, practice, the law and company policy designate that it is safe and acceptable for employees to raise legitimate concerns about corruption or unlawful acts, employees will presume that they risk victimisation, the loss of their job and damage to their careers. Firms, companies and corporations aware of bribes being solicited, may fear not only losing contracts if they do not pay up, but that their future economic interests will be at risk and their employees will be harassed should they blow the whistle on corrupt activities.

Unlike the situation in which criminals are offered plea bargain deals, high praise, protection and rewards on offering information which assists in the investigation and conviction of other criminals. When responsible employees or law abiding organisations blow the whistle on corruption, the best they can hope for seems to be isolation, disapproval and chastisement. The result, albeit unintentional, is that is that a criminal who informs on corruption in which he has participated will receive greater protection and assistance from the authorities, than an innocent employee or competitor who blows the whistle on corrupt activities of their own accord.

This situation has particular relevance in the context of bribery which appears to be rife in Botswana especially with the traffic police who are extremely brazen in soliciting bribes from drivers. It is clear that the fight against corruption cannot be successful, if the public and companies are not enabled and encouraged to blow the whistle when a bribe is solicited from them.

Without information from companies, employees and the public in general about the solicitation of bribes by corrupt colleagues, police, government officials and other law enforcement authorities would have to rely on evidence from either the bribe payer or the bribe recipient. Considering the fact that these two parties would have in effect conspired against the public good, it might be optimistic to rely on one of them to ‘see the light’, come forward and to make available the proof which would allow the law to be enforced.

This culture discourages many normal, decent people from coming forward and raising concerns about serious unlawful activity. Moreover it encourages dishonest people to continue their illicit activities and even to use the information gleaned to their own advantage, when and if they choose to do so. This culture may in fact increase the risk of abuse, because, malicious workers and aggrieved competitors making damaging disclosures are able to exploit the situation in the absence of clear signals about how to blow the whistle properly. Without safe procedure for whistleblowing in place, wrongdoers may believe that they are justified in communicating false information to the authorities or the media anonymously. With no more than the anonymous, but attention-grabbing allegations to go on, authorities may commence investigations where the media commonly report damaging, unsubstantiated rumors.

THE WHISTLEBLOWER’S DILEMMA

Dern points out that should a person be concerned about corruption or serious misconduct, within or by an organisation or individual, they have three practical options available to them which include staying silent, blowing the whistle internally or with the responsible person or finally blowing the whistle outside of the organisation to either the authorities or in the media.

Silence

Keeping silent is the safest option for the employee or organisation who encounters or uncovers corruption and is attractive for many reasons. The whistle blower might realise that there may possibly be a legitimate explanation for the situation they perceived as corrupt activity and that their facts may be mistaken. Should they come forward and be proved wrong this would be embarrassing and awkward.

Where the whistleblower knows that others are aware of the illicit activity and have chosen to remain silent, they may question why they should speak out, putting themselves at risk. In companies where labour relations are adversarial and in cultures where corruption is widespread, the whistleblower may assume that they will be expected to prove that the corrupt practice is occurring, rather than see those in authority investigate and deal with the matter. The whistleblower may feel responsible for any remedial action taken against the wrongdoer even though they have no control over this. They may experience feelings of guilt and anxiety over the outcome of the investigation. The whistleblower will inevitably remain silent unless they believe there is a good chance that something will be done to address the reported wrongdoing.

Even if the whistleblower believes that they should take action, without reassurance to the contrary, they will probably fear reprisals and will consider their own private interests before taking any action. Whistleblowers may also feel that corruption is condoned by senior employees who are often involved and that should they report the illicit activity it will simply be covered up and they will be targeted and even forced out of their job. Even if these obstacles are overcome whistle blowers may fear being labelled as disloyal and ostracised by colleagues whose respect and trust they may need.

This culture of silence results in a number of challenges, in that responsible employers are denied the opportunity to protect their interests. Additionally, unscrupulous competitors, managers and employee belief that ‘anything goes’ is reinforced. Another result of this culture is that society focuses more on compensation and punishment than on the prevention and deterrence of illicit activities.

INTERNAL WHISTLE BLOWING

The UK Committee on Standards in Public Life made the following comments on addressing internal whistleblowing:

“Placing staff in a position where they feel driven to approach the media to ventilate concerns is unsatisfactory both for the staff member and the organisation. We observed in our first report that it was far better for systems to be put in place which encouraged staff to raise worries within the organisation, yet allowed recourse to the parent department where necessary. An effective internal system for the raising of concerns should include:
ÔÇó A clear statement that malpractice is taken seriously in the organisation and an indication of the sorts of matters regarded as malpractice;
ÔÇó Respect for the confidentiality of staff raising concerns if they wish, and an opportunity to raise concerns outside the line management structure;
ÔÇó Penalties for making false and malicious allegations;
ÔÇó An indication of the proper way in which concerns may be raised outside the organisation if necessary”

When formulating the above recommendations, the committee took account of good practice in the private sector where experience in providing fail safe reporting structures to management has been a focus. Whistle blowing initiatives started in competitive markets where organisations realised that early reporting of illicit activities was beneficial to them. This practice has now been adopted by the public sector in general.

However many organisations today still treat whistle blowers as troublesome, untrustworthy complainants. This is a serious mistake because, not only is information from employees easy to get and free to collect, but it enables companies to correct a potential problem before it causes any significant damage to it, its reputation or its stakeholders. Recently, with the benefits of whistleblowing schemes increasing being recognised, certain large companies have started using outside advice lines in order to support and encourage employees to raise concerns about illicit activity. For example De Beers have implemented a scheme known as “Speak Up” which is a confidential whistleblowing service, managed independently by Deloitte Tip-offs Anonymous.

Organisations are finally beginning to realise the significance of providing a safe alternative to line management. Without it, managers have a monopolistic control over which information goes higher up the chain of command. One weak link, be it a corrupt, idle, ill or incompetent person may break the communication chain and impede management receiving critical information, thus increasing the risk of illicit activity within the organisation.

OUTSIDE OR EXTENAL WHISTLE BLOWING

When it is unsafe and no procedures exist for people to blow the whistle internally, it becomes necessary for people who feel action is warranted when they come across corruption to explore other options. This usually involves them repoerting the matter externally, to either the authorities, the media or public interest groups who may be able to assist. As technology improves more opportunities for the reporting of corrupt activities are becoming available to employees wishing to do so.

External disclosures raise the legal and ethical issues of both confidentiality and business secrecy. In addition they impact on the balance of relationships between business, the state and the media. At the very least an outside disclosure will involve some measure of investigation, regulatory intervention and inconvenience. However If the external disclosure is made to the media, the adverse publicity could cause unnecessary disruption and serious damage to the organisation, who might have been able to deal with the problem in-house if they had efficient whistleblowing policies and procedures in place for internal reporting. Media disclosures are a legitimate first option for whistleblowers in the absence of safe internal alternatives. Rather than reporting their concerns legitimately, aggrieved and malicious employees or ex-employees may choose this route with the primary goal of causing damage to organisations.

In the majority of legal systems, Botswana included, there is no protection afforded to external whistleblowers even if they have acted reasonably and in good faith. For this reason reports are regularly made anonymously increasing the challenges of successful investigation. However the whistleblowers are often identified, dismissed and prosecuted, discouraging future whistleblowers from reporting illicit activity. This policy often results in reports only being made when employees leave the employ of the organisation, allowing unlawful activity to go on for much longer than it should have done before the alarm is raised, often with far reaching consequences.

Time and again it is revealed during disaster investigations, that individuals who worked in or with the organisation involved had observed problems, but, had either been too frightened to report them or had done so in the incorrect way or too the wrong person. The resulting tragic human costs and enormous financial damage has been catastrophic. Additionally, these incidents undermine public confidence in the organisation, in business and governments where the very success of business, public bodies and new technologies rely on public confidence for survival in competitive markets today.

At any time where a scandal or major disaster could have been averted, there is increased pressure for new regulatory controls. Even though these measures are directed at the irresponsible, they frequently impose burdens on responsible organisations, damaging competition and increasing the costs of doing business. Each disaster furthermore calls into question the mechanisms by which society and the law manage the conduct of organisations, renewing mistrust and scepticism about the role and work of governments and business.

THE WAY FORWARD

For all organisations today, it is important to have a strong, safe and effective whistleblowing scheme in place. Generally where communication channels in organisations are designed for effective handling of grievances and complaints, that is how they are used by the workforce. Employees should be encouraged to and rewarded for bringing corrupt activities to the attention of management, where issues can be addressed internally, confidentially and effectively, averting risk and minimising damage to the reputation of the organisation in question. A whistleblowing scheme will assist organisations and societies in the deterrence of corruption and wrongdoing, where a considerable number of employees who at present stay silent may be encouraged to perceive internal whistleblowing as a feasible, safe and accepted option for reporting concerns.

I am available to assist in the design and implementation of whistle blowing schemes for organisations who require them. Expert Profiling is contactable on Tel: 390 9957 email – [email protected] or [email protected] or on Twitter @LauriePieters. This article is based on a paper written by Guy Dern entitled Whistleblowing – a New Perspective published in 2001.

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