The protection of whistleblowers is essential and needs to be significantly improved in many companies and countries. The EU Whistleblower Protection Directive has highlighted this issue, which is a very welcome development. But have we ever wondered who protects the accused? How do we, as compliance officers, ensure that the whistleblowing system is not being misused?
In my experience, the claims in about 50 percent of reported whistleblower cases are made in good faith but are without merit. What about the other half?
The question becomes particularly important when it comes to an accusation that is a soft topic. Subject areas such as fraud, corruption, or theft are certainly easy to investigate, especially since they can be objectively assessed. But what happens when it comes to topics such as leadership style, sexual innuendo, bullying, or mismanagement?
Understandably, few companies have a process that allows an objective and fair investigation but at the same time protects the reputation of the accused. Many companies make the accused’s identity public during an investigation. The outcome is often that there was nothing “hardcoded” about the accusation, but they terminate the accused anyway to avoid criticism for not taking any action.
The consequence is that employees who, for example, may have received a bad rating or whose contract is terminated or not renewed is likely to become disgruntled. Disgruntled ex-employees are often behind legal action against former employers, and many anonymous whistleblowing cases stem from disgruntled employees.
If members of the compliance community do not act, we share some of the blame for the unjust outcomes.
How can we play a proper role?
The best way is to establish and follow clear procedures:
- What information is required for an investigation to be initiated? When do we turn down an investigation?
- Dedicated investigators who are also trained to conduct investigations confidentially. I would advocate that every compliance officer can do so.
- The accused should be provided with a notice of their rights and how to address bad faith allegations.
- Requirements on how interviews and document reviews are to be documented. Shall the interviewee, including the accused, sign off interviews?
- Definition of who can investigate whom, and when to engage an external investigator?
- What are the procedures to inform HR, line managers and other senior management about an accusation, the findings of an investigation, and action taken? Maybe this should be a very limited group of people, and if the investigation is without merit, it should be classified as unsubstantiated unless there is sufficient evidence to the contrary.
- How do companies ensure that the investigator does not do a fishing exercise and conducts a fair and objective investigation in respect of the soft cases?
- How will disciplinary measures be handled? Who decides on discipline, and how can consistency be assured within the organization?
- Does an investigation require those conducting it and involved with the process to sign a confidentiality and non-disclosure agreement?
- What is the company’s procedure to handle cases that have been lodged in bad faith to harm others?
- What are the data privacy rights of the accused and others?
I doubt most companies ask or answer many of those questions. The it’s essential to that the compliance community protect both whistleblowers and those accused by them. Both are equally important and protecting both is essential to the integrity of the whistleblower system itself.
While there is no one-size-fits-all approach, protecting an accused person needs to be a clear and documented processes. This part of the system should be as transparent as the whistleblower system itself.