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Chapter 2. Public Sector Whistleblower Protection Laws in OECD Countries

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Chapter 2. Public Sector Whistleblower Protection Laws in OECD Countries 2. PUBLIC SECTOR WHISTLEBLOWER PROTECTION LAWS IN OECD COUNTRIES – 39 Chapter 2. Public sector whistleblower protection laws in OECD countries The purpose of whistleblower protection is to protect individuals from being exposed and retaliated against for disclosing misconduct. Despite the common aim of whistleblower protection systems, the disclosure processes in place in OECD countries vary. This chapter analyses the varying elements and protections that countries have put in place and how they apply throughout disclosure processes, including: the scope of coverage and subject matter; reporting requirements; channels of reporting; fundamental safeguards, such as anonymity and confidentiality; and the prospect of incentives. The statistical data for Israel are supplied by and under the responsibility of the relevant Israeli authorities. The use of such data by the OECD is without prejudice to the status of the Golan Heights, East Jerusalem and Israeli settlements in the West Bank under the terms of international law. COMMITTING TO EFFECTIVE WHISTLEBLOWER PROTECTION © OECD 2016 40 – 2. PUBLIC SECTOR WHISTLEBLOWER PROTECTION LAWS IN OECD COUNTRIES Upon identifying wrongdoing or the attempt to commit wrongdoing, an employee may not be certain of what to do with the information discovered, where or whom to turn to, and whether they are protected by relevant whistleblower protection mechanisms. Throughout the disclosure process, employees may have reservations about safeguards such as anonymity and confidentiality measures, they may also be incentivised by the prospect of a reward. The multitude of steps along the disclosure process can be daunting and vague, however, if implemented according to whistleblower protection laws, the disclosure process can and should be the first system in line to protect whistleblowers from reprisal. Broadening the horizons of whistleblower coverage Most employees ensure they understand their employee rights such as leave entitlements, benefits and pay, however, it is also essential for employees to recognise whether the whistleblower protection system in place applies to them and to what extent. Individuals who come forward with disclosures of wrongdoing often do not recognise themselves as whistleblowers, rather they attribute their response to detecting and disclosing information as falling within the scope of their workplace duties and responsibilities. While wrongdoing may be identifiable by anyone who witnesses it, the parameters of protection may be linked to the positions they hold, the sectors they are employed in, and whether or not they are on the payroll. For instance, coverage may not necessarily be extended to alternative employment arrangements or voluntary positions. A vague and unclear scope of coverage can cause uncertainty over the protection afforded and can leave employees feeling disenfranchised and unwilling to come forward with alleged wrongdoing for fear of not being protected or supported. Among members of the public there can be confusion between the terms whistleblower protection and witness protection. A whistleblower may qualify as a witness if they are requested to provide evidence in trial, but whistleblowers will not necessarily always qualify for witness protection. Protection from retaliation, in the form of reprisals, is vital in the time between being designated a whistleblower to being a prospective witness. In addition to distinguishing between the protection afforded to whistleblowers, witnesses and informants, it is important to clearly identify the types of employment arrangements that are protected through whistleblower protection frameworks, as well as to cast a wide net of protection to a range of employment categories and sectors. Witness protection arrangements are not sufficient to protect whistleblowers The difference between whistleblower protection and witness protection is outlined in the United Nations Office on Drugs and Crime (UNODC) Resource Guide on Good Practices in the Protection of Reporting Persons, and the UNODC Technical Guide to the United Nations Convention against Corruption (UNCAC), indicating that UNCAC Article 33, specific to reporting persons, is intended to “cover those individuals who may possess information which is not of such detail to constitute evidence in the legal sense of the word” (UNODC, 2015, p.6 and 60; UNODC, 2009, p.105). While the UNCAC does not define the term “witness”, Article 32 limits the scope of witness to those who give testimony concerning offences established in accordance with the Convention (UNODC, 2009, p.101). COMMITTING TO EFFECTIVE WHISTLEBLOWER PROTECTION © OECD 2016 2. PUBLIC SECTOR WHISTLEBLOWER PROTECTION LAWS IN OECD COUNTRIES – 41 Although the differences among the terms are clear, there is a potential overlap between whistleblowers and witnesses as some whistleblowers may possess solid evidence and eventually become witnesses in legal proceedings (Transparency International, 2013). When whistleblowers testify during court proceedings they can be covered under witness protection laws. However, if the subject matter of a whistleblower report does not result in criminal proceedings, or the whistleblower is never called as a witness, then witness protection will not be provided. Even if a whistleblower is entitled to witness protection due to eventual involvement in related criminal proceedings, the measures provided (such as relocation and changed identity) may not always be relevant. Given that whistleblowers are usually employees of the organisation where the reported misconduct took place, they may face specific risks that are normally not covered by witness protection laws – such as demotion or dismissal. Furthermore, they may need compensation for salary losses and career opportunities. Witness protection laws are therefore not sufficient to protect whistleblowers (Transparency International, 2009). Some whistleblowers may seek immunity from prosecution or reduced sanctions, as informants are often involved in wrongdoing and are using their disclosure of information as a means to reduce their liability (Banisar, 2011). Apart from a few jurisdictions that provide financial incentives, whistleblowers usually do not receive any benefits for their disclosures (Banisar, 2011). If a strategic disclosure about wrongdoing (in which the whistleblower was personally involved) is made with the purpose of escaping or lessening the severity of sanctions, it is recommended that this should only be occur “in relation to any retaliation for making the disclosure, not for the disclosed misconduct itself” (Whitton, 2008, p.3). If an informant comes forward with information that may result in workplace retaliation, s/he should be entitled to the full range of protection against retaliation. Whistleblower protection should apply to all who carry out functions related to an organisation’s mandate Laws in place to protect disclosers can help employees identify as whistleblowers. However, in some countries, individuals who report wrongdoing may find themselves outside of the protection parameters. The scope of coverage in certain OECD countries can be delineated by a broad or narrow interpretation of the term “employee,” and can be sector specific. A broad interpretation of the term whistleblower is important, as this means a large number of individuals can be afforded protection. However a “no loophole” approach to the scope of coverage of protected persons is essential. This ensures that in addition to public servants and permanent employees, specific categories of employees are explicitly outlined as qualifying for protection, such as those outside the traditional employee- employer relationship (e.g. consultants, contractors, trainees/interns, temporary employees, former employees and volunteers). In cases of public sector whistleblower protection provisions, a no loophole approach ensures that employees of state-owned or controlled enterprises and statutory agencies also qualify for protection. Among OECD countries, the degree of protection and to whom varies, as shown in Table 2.1. COMMITTING TO EFFECTIVE WHISTLEBLOWER PROTECTION © OECD 2016 42 – 2. PUBLIC SECTOR WHISTLEBLOWER PROTECTION LAWS IN OECD COUNTRIES Table 2.1. Varying degrees of whistleblower protection in the public sector Temporary Former Employees Consultants Suppliers employees employees Australia z z z z z Austria z z z Belgium z z Canada z z z z z Chile z Estonia z z z z z France z z z z z Germany z z z z z Hungary z z z z z Iceland z z Ireland z z z z z Israel z z z z Italy z z z z Japan z z Korea z z z z z Mexico z z z z z Netherlands z z z New Zealand z z z z z Norway z Portugal z z z z z Slovak Republic z Slovenia z z z z z Switzerland z z Turkey z z z United Kingdom z z z z United States z z z z Total OECD 26 Yes: z 26 17 13 23 17 No: 0913 39 Notes: In Greece, according to Law 4254/2014, sub paragraph IE.13, the relevant prosecutor decides who will be given whistleblower status. In the United States, the term “suppliers” may or may not be inclusive of certain contractors who could be covered under certain US laws that protect public and private sector employees. The particular laws that would apply will depend on whether the “supplier,” like a “consultant,” is a contractor for purposes of the law. There is also a distinction between disclosures by contractors that concern wrongdoing in government and those that concern wrongdoing by a private company, including their employer, or both. The statistical
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