Deciding to take formal action to call out an injustice, or criminal act, in your place of work is a very serious step. What is presented here is neither a legal guide nor an encouragement, or recommendation, for anyone to blow the whistle. There can be a lot at stake and no such decision should be taken without careful thought.
Here are some of the things you should consider beforehand. Above all, take specialist advice before you do anything!
Do you work for a music, or film or television company, or an organisation controlling copyrights and administering income from those copyrights? There are specific things that are identified as wrongdoings in a workplace about which a whistleblower might be tempted to speak out.
Examples might be:
Many whistleblowers fear reprisals if they reveal this information. Some governments protect whistle-blowers by law as a matter of public policy, to minimize the personal risks to whistleblowers, but ONLY if they go about it the right way.
Governments see this protection as a way to promote good corporate governance as whistle-blowers may have access to information that is not available to investors or regulators. Wrongdoing should be exposed especially where exposure is in the public interest (which is not the same thing as something that might interest the public!)
There is no duty to become a whistle-blower, but employees may be sufficiently concerned. If so they should discuss your concerns with their family confidentially. Although there may be protections in the right circumstances, it is an enormous step that is likely to have an impact on personal life, be stressful and a whistleblower would need support.
First they should discreetly check to see if the company has a whistle-blowing policy. There is a tension between a duty to the company (and it could be a fiduciary duty) and disclosures that could damage the company. Even if an employee has signed a confidentiality or gagging clause in a settlement agreement, this may not be enforceable for a whistle-blower. But this is something a lawyer should advise about. In any event a check on the company’s non-disclosure policies would be in order initially as the company has a legal right to protect proprietary information or trade secrets, valuable intellectual property or material protected by legal privilege.
Concerns cannot be a mere allegation, it must be an actual belief or factual situation. A potential whistleblower should keep any copies of documentation outside the company in a secure location and if they fear taking material from the workplace, should try and memorise it and record it at home. Keeping detailed personal records of the process from the beginning and throughout developments with times, dates, persons spoken to, those present at conversations and what was said would be wise. And, not using work time to prepare the materials and do not use company computers would be a given.
There may be someone within the organisation with whom a potential whistleblower can discuss their concerns to try and resolve the matter internally. Remaining calm, sticking to the facts and keeping personal grievances out of the narrative is always best when discussing any sensitive company issues.
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:-
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:
But three factors can reduce an award:
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/
Potential whistleblowers who have exhausted internal processes, should without exception find a professional person outside the organisation with whom they can have a confidential conversation about the matters concerned. It is never sensible to speak to the media in such circumstances without the support of experienced outside legal help, if at all. Listening to professional advisers who know what they are doing and are experienced in media matters related to this sensitive subject is always advisable.
UK Government advice can be found here: https://www.gov.uk/whistleblowing
Other UK help and guidance can be found here: http://www.whistleblowing.org.uk/
A US Corporate Whistle-blower’s Survival Guide can be ordered here.
Having got here, you may now need more information and support in your fight for fairness. Collective associations are the best place to start.
Although you may feel David to the industry's Goliath, having the backing of trade bodies helps level the playing field.
Information is power!