![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
ABSTRACT
Despite the enactment of legislation on public interest disclosures, whistleblowers still face significant retaliation. Perceptions and expectations of loyalty to a firm, organisation or a government continue to be seen as antithetical to ‘voice’, that is, the disclosure of wrongdoing, thereby triggering strategies of organisational exit and punishment. Real change can occur if whistleblowing is elevated to a civic duty of equal importance to other civic duties, such as to protect and defend the rule of law, human rights and democracy and to report suspected criminality to authorities. In this article, I justify whistleblowing on a good citizenship concept which transcends particular national institutional characteristics and critically examine the content and contribution of the European Union’s Directive on Whistleblower protection. By deploying a tripartite lens blending analytical questions and a discoursive theoretical perspective with a comparative assessment of instruments in the Member States and the EU, the discussion makes the case for the urgent change in the culture of punitive treatment of whistleblowers in the European Union and for further institutional reform when the Directive is reviewed in the future.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1. According to the Council of Europe, a whistleblower is the person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, be this in the private or public sector; 2014 Recommendation on the Protection of Whistleblowers, adopted on 30 April 2014, https://rm.coe.int/16807096c7. The Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law, OJ L305/17 follows the same definition; the Recital refers to ‘Persons who work for a public or private organisation or are in contact with such an organisation in the context of their work-related activities are often the first to know about threats or harm to the public interest which arise in that context. By reporting breaches of Union law that are harmful to the public interest, such persons act as “whistleblowers” and thereby play a key role in exposing and preventing such breaches and in safeguarding the welfare of society’[1]. In addition, Recital 3 states: ‘in certain policy areas, breaches of Union law, regardless of whether they are categorised under national law as administrative, criminal or other types of breaches, may cause serious harm to the public interest, in that they create significant risks for the welfare of society’.
2. A Guardian survey of NHS staff in 2016 revealed that 55% of the respondents traced the triggering incident of bullying to the raising of concerns within the NHS setting; ‘NHS staff lay bare a culture of bullying’, The Guardian, Wednesday 26 October 2016, p. 38.
3. ‘Once you speak up, your life is never the same’, Lunch with FT, Financial Times Life, 14/15 March 2020, p. 3.
4. See Hirschman (Citation1970). Hirschman’s theoretical framework does not capture many in-between positions as well as combined positions. Alternatives to loyalty could be considered to be indifference and apathy, constructive resistance and selective non-compliance. Alternatives to exit could be considered to be semi-detachment or renegotiation of contractual terms or a change in leadership.
5. The discussion in this article will not focus the disclosure of official information relating to the work of the armed forces, intelligence services and diplomatic services. Nor will I deal with the disclosure of information by public servants and Crown ministers and thus the requirements of the Official Secrets Act 1989. For this reason, I will not refer to the disclosures by Chelsea Manning, Edward Snowden and Julian Assange. Readers are directed to other sources, such as, Bok (Citation1989); Sagar (Citation2013); Fenwick and Phillipson (Citation2016) and Savage (Citation2016).
6. Compare, here, Heller’s (Citation1989) view of justice as a virtue of citizenship.
7. Civil Service Reform Act 1978.
8. This is in addition to the moral imperative of ‘do no wrong and so far as lies in your power, do not permit wrong to be done’. I do not wish to give the impression, here, that I seek to divorce public ethics and institutional norms from private morality for both are aspects of an integral reality experiences by individuals.
9. See, for example, the reactions on the part of members of Parliament with respect to the phone-hacking scandal surrounding the New of the World in 2011; ‘Day of atonement’, The Times, 16 July 2011, p. 1.
10. UK Employment Rights Act 1996, Part IVA Protected Disclosures.
11. Public accountants and health practitioners, for example. Following a scandal of neglect of people in care homes in 2011 in the UK, the Care Quality Commission announced the setting up of a whistleblowers’ hotline and the establishment of a unit dealing with reports of mistreatment and neglect of old residents in care homes; The Times, 6 August 2011, p. 10. ‘The Culture of whistleblowing should be an essential part of the health worker’s professional duties’, argued Mr Sam Lister, Health Editor of The Times on page 11.
12. A failure to report a felony is a criminal law offence in the UK; Sykes v DPP [1962] AC 528.
13. The discussion, here, focuses on organisations’ perceptions of whistleblowers and their retaliation. Perspectives that focus on the motivations of whistleblowers rely on different narratives and typologies. In addition to individual and organisational considerations, they may pay attention to the role of group memberships and associated social identities; see, for example, Anvari, Wenzel, and Haslam (Citation2019) and Iwai, Yeung, and Artes (Citation2021).
14. See, for example, Article 120(2) of the Greek Constitution of 7 June 1975 and Article 20(4) of the Basic Law of the Federal Republic of Germany.
15. In the context of Public Interest Disclosure Act 1998, the ‘public interest’ requirement was inserted by Enterprise and Regulatory Reform Act 2013, section 17 in order to reverse the effect of Parkins v Sodexho [2001] UKEAT 1239_00_2206. In Chesterton Global Ltd and another v Nurmohamed [2017] IRLR 837, the employees’ lawyers argued that the disclosure should be regarded to be in the public interest if it raises matters that are more than purely personal and the issues are of some importance to at least one other person. The Court of Appeal held that four factors are useful indicators of whether the disclosure may be reasonably believed to be in the public interest; namely, the numbers in the group whose interests the disclosure served; the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed, the nature of the wrongdoing disclosed and the identity of the alleged wrongdoer. In Underwood v Wincanton plc, the EAT held that the public interest disclosure could be satisfied even if it relates to a small number of workers. But compare Parsons v Airplus International Ltd UKEAT/0111/17 (13 October 2017, unreported). See also Guja v Moldova, Application No 14,277/04 (ECtHR, 12 February 2008) and Rubins v Latvia, Application No 79,040/12 (ECtHR, 13 January 2015) on the issue of ‘public interest’.
16. 5 U.S.C. 2302(b)(8)-(9). Pub.L. 101–12. It is not within the scope of this discussion to highlight the limitations imposed on security and intelligence personnel. Nor will I discuss the UK’s Official Secrets Act 1989.
17. International Labour Organisation Thesaurus (2005).
18. Recommendation CM/Rec (2014) 7, adopted on 30 April 2014: https://rm.coe.int/16807096c7.It draws on the case law on freedom of expression of the ECtHR enshrined in Article 10 ECHR and Article 11 of the EUCFR. It is worth mentioning, here, Principle 25 of the CE Recommendation: Reversal of the burden of proof: ‘It can be difficult for whistleblowers to prove that the reason for the unfair treatment by the employers is because they reported wrongdoing. Thus in legal proceedings relating to the detriment suffered, once the whistleblower has shown prima facie that she has made a public disclosure report, the employer should carry the burden to prove that the detrimental action was fair and not linked in any way to whistleblowing’.
19. Ibid, Principle 2.
20. The Explanatory Memorandum of Recommendation 2014 provides a non-exhaustive list of disclosures of the following: corruption and criminal activity; violations of the law and administrative regulations; abuse of authority or public position; risks to public health, food standards and safety; risks to the environment; gross mismanagement of public bodies (including charitable foundations); gross waste of public funds; a cover-up of any of the above.
21. A disclosure is more than a statement or communication and information is more than an allegation or the statement of a suspicion. It must convey facts justifying the belief that illegality or misconduct has taken place; Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT; Smith v London Metropolitan University [2011] IRLR 884 EAT; Kilraine v London Borough of Wandsworth [2016] IRLR 422 EAT.
22. This does not mean that the belief must be correct; Darnton v University of Surrey [2003] IRLR 133.
23. The public interest requirement was added by section 17 of the Enterprise and Regulatory Reform Act 2013 in order to reverse the effect of Parkins v Sodexho [2002] IRLR 109 thereby limiting the volume of litigation. See also Parsons v Airplus International Ltd UKEAT/0111/17 (13 October 2017, unreported). Guidance on the interpretation of the term public interest was given in Chesterton Global Ltd v Nurmohamed [2017] IRLR 837.
24. On the interpretation of the word ‘likely’, see Kraus v Penna plc [2004] IRLR 260 EAT.
25. For external disclosures, there are additional requirements, such as the information disclosed must be substantially true, the disclosure is not made for personal gain, is made in good faith and it is reasonable for the worker to make the disclosure as well as that the information pertains to conduct of an exceptionally serious nature; for commentary, see Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687.
26. NHS Manchester v Fecitt [2002] IRLR 64.
27. Persons who commit an offence in making the disclosure are not protected; ERA s 43B(3) as inserted by PIDA, s 1. This applies to civil servants who work under the shadow of the Official Secrets Act 1989.
28. For instance, only in 7% of whistleblowing cases, UK Employment Tribunals were willing to provide interim relief in accordance with s. 128 ERA 1996; ICF’s Study (Citation2017, Annex 6 p. 212).
29. See Woods v W.M. Car Services Ltd [1981] IRLR 347.
30. Transparency International (2013) Whistleblowing in Europe: Legal Protections for Whistleblowers in the European Union; Transparency International (2016) Global Corruption Barometer.
31. Research tends to show that this is a process that involves several steps which might take several months to materialise. It commences with pressure on the employee to desist, such as verbal abuse, criticisms of job performance, frustration and surveillance and ends with the stage of expulsion; compare, Hersh (Citation2002), 243–262.
32. Mrs Babita Deokaran was murdered on 23 August 2021 while she was returning home having dropped off her daughter at school. She had uncovered and reported corruption at the Gauteng Department of Health, South Africa. Her murder received wide media attention in South Africa and across the world; ‘Mystery of Murdered Whistleblower who uncovered hospital corruption’, The Telegraph, 11 October 2022.
33. Summary Results of the public consultation on whistleblower protection: Ref. Ares(2018)1461174–16/03/2018.
34. These cover areas, such as financial services, transport safety, the protection of the environment, the prevention of money laundering and the financing of terrorism. See also V. Abazi (Citation2020).
35. Unless these are covered by the relevant acts of the Union (Article 3(2)). National security remains the sole responsibility of the Member States.
36. This means that third country nationals are included with its scope. The nationality of the reporting person is not a relevant consideration. What is relevant is the information on breaches of the law that are in the public interest to report.
37. See Chapters II and III of the Directive.
38. The prohibition of retaliation includes the prohibition of threats of retaliation and attempts of retaliation (Article 19).
39. These were: Italy (INFR(2022)0106), Luxembourg (INFR(2022)0119), Poland (INFR(2022)0150), Hungary (INFR(2022)0093), Germany (INFR (2022)0052), the Czech Republic (INFR(2022)0043), Spain (INFR(2022) 0043) and Estonia (INFR(2022)0055).