Protection varies from country to country.
In the UK and the Commonwealth organisations are prohibited from subjecting whistle-blowers to harmful treatment. They may be given protection if they are an employee or contracted worker but not if the concern relates to work that is being done for a client or customer. Whistleblowers must be integrated operationally into the business before protection for disclosures about that company might be available.
Volunteers are not protected.
The information that qualifies for protection is determined by the UK Public Interest Disclosure Act of 1998, which operates in conjunction with certain employment laws. The Act provides that whistle-blowers cannot be dismissed or subject to detriment. What actually constitutes the public interest is a hurdle to get over, and frivolous disclosures or a lack of good faith may affect the level of legal protection. This is why speaking with an experienced lawyer is always a good plan. The UK law sets out what qualifies for protection:
“…….a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:-
- that a criminal offence has been committed, is being committed or is likely to be committed;
- that a person has failed, is failing or is likely to fail to comply with a legal obligation to which he is subject;
- that a miscarriage of justice has occurred, is occurring or is likely to occur;
- that the health or safety of any individual has been, is being or is likely to be endangered;
- that the environment has been, is being or is likely to be damaged;
- that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.
In Europe: In 2017 the European Commission conducted a public consultation about whether to introduce an EU minimum level of protection and its introduction is supported by the Committee on Legal Affairs. Such protection forms part of the policy agenda of EU organisations such as the Transparency Project. On May 7 th 2018 the European Commission produced a new set of rules intended to protect whistleblowers. The rules will appear as a Directive and will be applicable across a set of identified sectors. More information can be found here and here.
In the USA: protection of those making disclosures also exists with the added component of a financial reward to encourage whistle-blowing. This potentially valuable financial incentive, available to whistle-blowers making disclosures, is determined by reference to various factors such as:
- the significance of the information;
- the level of assistance provided by the whistleblower;
- any wider law enforcement interest that might be advanced by a higher award;
- the extent to which a whistleblower met internal compliance systems. It will be considered by reference to whether the whistle-blower reported on a company where they were currently employed, whether they first reported the matter internally or whether they first participated in any internal investigation.
But three factors can reduce an award:
- a whistle-blower’s own culpability;
- whether they interfered with internal compliance systems;
- or made unreasonably delayed disclosures.
Since 1989 there has been the Whistle-blower Protection Act that protects employees in the private sector from reprisals and identifies the appropriate authority to whom disclosures should be made. In addition, other federal and state statutes work to protect employees in various sectors from retaliation when they disclose, to the appropriate authorities, the misdeeds of their employers. The US constitutional right to free speech and the Freedom of Information Act work in tandem with these federal and state protections.
The USA also has a federal act specifically to protect workers in federal employment and four federal programmes for whistle-blowers that address healthcare & defence; tax; securities violations and commodities trading, to incentivise federal disclosures.
The US Department of Labour also provides guidance about protection, details of which can be found here: https://www.whistleblowers.gov/