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Review of Whistle-Blower Policies and Practices in United Nations System Organizations

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JIU/REP/2018/4 REVIEW OF WHISTLE-BLOWER POLICIES AND PRACTICES IN UNITED NATIONS SYSTEM ORGANIZATIONS Prepared by Eileen A. Cronin Aicha Afifi Joint Inspection Unit Geneva 2018 United Nations JIU/REP/2018/4 Original: ENGLISH REVIEW OF WHISTLE-BLOWER POLICIES AND PRACTICES IN UNITED NATIONS SYSTEM ORGANIZATIONS Prepared by Eileen A. Cronin Aicha Afifi Joint Inspection Unit United Nations, Geneva 2018 Review Team: Eileen A. Cronin, Inspector, Joint Inspection Unit Aicha Afifi, Inspector, Joint Inspection Unit Numayr Chowdhury, Evaluation and Inspection Officer, Joint Inspection Unit Eleyeba Bricks, Research Assistant, Joint Inspection Unit Karima Aoukili, Research Assistant, Joint Inspection Unit David I. Maradiaga, Consultant, Data Analytics John Emerson, Intern, Joint Inspection Unit Sadaf Azimi, Intern, Joint Inspection Unit Tanvi Mani, Intern, Joint Inspection Unit iii EXECUTIVE SUMMARY Review of whistle-blower policies and practices in United Nations system organizations JIU/REP/2018/4 I. Background The present review was included in the programme of work of the Joint Inspection Unit (JIU) for 2017, following a proposal made by the United Nations Educational, Scientific and Cultural Organization for JIU to look at the effectiveness of whistle-blower policies and practices across the United Nations system organizations to ensure that whistle-blowers are accorded adequate levels of protection, especially with regard to retaliation. Whistle-blowing and protection against retaliation are essential components of an organization’s accountability and integrity; when responses are inadequate, or where systems are weak, personnel are deterred from coming forward to report misconduct and wrongdoing. This increases the risk of substantive damage to the organization’s reputation and undermines operations. Over the past few years, there have been high-profile cases of whistle-blowers from United Nations system organizations who have gone public for a variety of reasons, including a perceived lack of adequate action by their organization in response to their initial reporting of misconduct and/or retaliation. These high-profile cases in United Nations organizations point to policies and practices that appear to have failed to meet the high standards of accountability that these entities espouse. The present system-wide review consequently focuses on policies, processes and procedures for reporting misconduct/wrongdoing and for protecting from retaliation those who do report. The review involved an analysis of protection against retaliation policies, questionnaire responses and other documentation collected from the 28 JIU participating organizations; interviews with over 400 stakeholders, including 17 individuals who had reported misconduct/wrongdoing and retaliation; focus groups; and a global staff survey on whistle-blower policies, which was conducted across the United Nations system organizations in order to measure perceptions. The main findings and conclusions of the review, and 11 recommendations, are outlined below. II. Best practices for written policies on whistle-blowing JIU reviewed 23 protection against retaliation policies (covering 28 United Nations participating organizations) that build upon and complement other internal policies pertaining to the reporting of misconduct and wrongdoing. These protection against retaliation policies, more often than not, have emerged as ad hoc responses to high-profile whistle-blower cases and/or have been developed in response to requests by Member States. Consequently, existing protection against retaliation policies are marked by inconsistencies and limitations in operational effectiveness and tend to vary in terms of the scope of activities and personnel covered, mechanisms and channels for reporting, and processes and procedures for mitigating and handling claims of retaliation. To identify and address these deficiencies, best practices criteria for written protection against retaliation policies were developed in consultation with an international expert on whistle-blowing policies and practices who is affiliated with an accredited academic institution. This encompassed the use of source documents from international experts, intergovernmental and non-governmental organizations and public and private sector entities. iv The process generated five best practices criteria for protection against retaliation policies: (a) reporting of misconduct/wrongdoing; (b) protection against retaliation; (c) additional support available to persons reporting misconduct/wrongdoing; (d) preliminary review, recording and investigation of misconduct/wrongdoing and retaliation reports; and (e) general strength of the policy. The five criteria include 22 indicators against which the policies of the participating organizations were rated. Each organization validated their respective ratings and provided additional documentation to contest ratings they disagreed with. All information received was carefully reviewed, and some of the ratings were updated. Criterion 1: reporting misconduct/wrongdoing The first best practices criterion for written protection against retaliation policies covers the enabling conditions that encourage personnel to report misconduct/wrongdoing. Only three organizations fully met all the requirements under this criterion. Most pertinent to this criterion is the accountability of the executive head of the organization. In this regard, the Inspectors recommend that legislative bodies adopt measures by 2020 to ensure that all policies related to misconduct/wrongdoing and retaliation specify appropriate channels and modalities, such as independent oversight committees, for reporting and investigating allegations against the executive head of the organization, as well as against any other functions that may entail a potential conflict of interest in the handling of such issues (recommendation 1). Criterion 2: protection against retaliation This criterion covers the mechanisms and processes, identified in the written policy, that make it possible for a person to feel secure in reporting retaliation (so as to encourage earlier reporting of misconduct/wrongdoing) and for that person to receive due protection. Such provisions are essential for furthering a culture of accountability in an organization, as fear of retaliation is one of several major deterrents for whistle-blowers. All organizations either fully or partially met the indicators for this criterion. Criterion 3: support for complainants Complainants need support and guidance in reporting misconduct/wrongdoing or retaliation, due to the associated risk to their careers, personal safety and/or social and personal well-being. Only four organizations fully met all three of the indicators under this criterion. A significant deficiency in the whistle-blower protection system in many organizations is the lack of an external and independent mechanism for handling appeals when a prima facie case of retaliation is not determined. Without an appeals mechanism, the ethics office is placed in the unenviable and de facto role of final adjudicator on highly sensitive matters that can significantly disrupt the professional and personal lives of complainants, and may also carry significant reputational risks for the organization. The need for the additional checks and balances afforded by appeals mechanisms is supported by data from the International Labour Organization Administrative Tribunal, which has decided in favour of complainants in 66 per cent of retaliation-related cases — all emanating from organizations that lack an independent appeals mechanism. The Inspectors recommend that, in United Nations system organizations that do not have an external and independent mechanism for handling appeals when a prima facie case of retaliation is not determined, the executive head instruct the relevant office(s) to develop, by 2020, appropriate options to address this deficiency for his or her timely consideration, and outline any agreed-upon mechanisms and processes in updates to protection against retaliation policies (recommendation 2). v Criterion 4: preliminary review, recording and investigation of misconduct/wrongdoing and retaliation reports Criterion 4 is used to assess whether, in the written policy, the systems for recording both misconduct/wrongdoing and retaliation are explicit, proper procedures for handling and investigating cases are identified and time frames are transparent. Only one organization fully met all the indicators, with most falling short in systematically recording reports, having explicit timelines for the preliminary review and investigation of misconduct reports and having provisions for external referral of misconduct investigations. Criterion 5: general clarity of policy Criterion 5 covers the fundamentals of a well-written policy and is used to assess whether the policy is clear, easy to understand, reviewed and updated over time and accessible. While all policies contain a duty to report and contain clear definitions of relevant terms, most organizations fail to fully meet the requirements under the other indicators, including establishing mechanisms for reviewing and revising the policy, having the policy contained in a single document that is easy to locate on the organization’s public web page and making use of examples to aid staff in understanding when and how the policy applies. Conclusions from the written policy review and a way forward While some of the protection against retaliation policies reviewed
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