How To Approach Whistleblower Retaliation & Protection

Last month, we hosted a webinar on Improving the Whistleblower Experience where we discussed the latest research on whistleblowing and retaliation. The conversation was led by one of our Advisory Board members, Dr. Wim Vandekerckhove, whistleblowing expert and Associate Professor of Business Ethics at the University of Greenwich. With a Ph.D. in Applied Ethics from Ghent University and more than 20 years researching whistleblowing. Wim currently serves as a convener of the ISO's new whistleblowing management standard 3702 and has also served as a convener of the BSI committee on whistleblowing as well as an advisor for several anti-corruption organizations such as Transparency International.

This event is part of our Compliance Heroes series, which we first launched as a global event series and pivoted to a virtual format over the past few months. Our aim in hosting these events is to bring the compliance community together to discuss common hurdles, align on the future of the industry, and highlight the most important part of any compliance program--the people.

Over 200 members of the compliance community registered for the event to discuss best practices on whistleblowing as well as the latest trends in regulation, practice, and academia. Continue reading to discover the main insights of our discussion. If you would like to listen to the full recording of the virtual event, you can access it here: Improving the Whistleblower Experience.

How should we conceptualize whistleblower retaliation and protection today?

Wim Vandekerckhove (WV): Throughout the past 20 years, there has been a shift from conceptualizing retaliation as intended harm to looking at it as a broader issue that also includes unintended detriment. In terms of protection, regulators and practitioners have changed from a previously reactive approach to a proactive approach, where regulation and internal policies are steered towards preventing harm rather than reacting to it.

What can compliance officers do to improve the whistleblowing experience and ensure that whistleblowers are protected from retaliation?

WV: Considering that there is still a significant amount of whistleblower cases where the reporter experiences retaliation, especially when reporting on mixed cases with more than one wrongdoing, it is pivotal to consider in which ways a compliance officer can contribute to promoting a culture of integrity.

Whistleblower retaliation cases occur most often in instances where the whistleblower is reporting a mixed case. Mixed cases represent around half of whistleblowing cases. Data from Whistling While They Work, a research project led by Griffith University’s Centre for Governance & Public Policy, examines the whistleblower experience across organizations in Australia and New Zealand. The report indicates that from a whistleblower perspective, even in instances where whistleblower cases were considerably well managed by the organization, compliance personnel tend to forget the stress that is often associated with submitting allegations of misconduct. Compliance officers should, therefore, take the necessary steps to reduce the stress that is often associated with reporting wrongdoing.

WV: The cornerstone of a best-in-class whistleblower process is the establishment of trust. Trust can be operationalized by establishing reliable and continuous feedback mechanisms between the case manager and the whistleblower as a means to manage expectations. In practice, this would imply that as opposed to receiving notifications at the beginning and the end of an investigation process, the reporter would ideally receive feedback during the development of the case. Constant feedback would not only mark a shift from a reactive approach to a proactive approach in reporting but would also act as a guarantee of trust.

At what point should CCOs notify executive leadership about reports of misconduct?

WV: While the frequency of reporting varies from organization to organization, rather than discussing the frequency, what CCOs should pay attention to is the governance of the reporting mechanisms. For example, if a report involves senior leadership, there should be a mechanism to inform the non-executive leadership of any wrongdoing. Governance mechanisms for reporting are also a proxy for determining the culture of an organization.

At what time is it appropriate to notify the supervisor of a person who is the subject of a report?

WV: Under many jurisdictions, it is illegal to retaliate against a whistleblower. The first thing that comes to mind when operationalizing protection is confidentiality, as a lack of it discourages whistleblowers from reporting wrongdoing. The question of notifying supervisors should be assessed on a 'need to know' basis, taking into consideration confidentiality and the integrity of the evidence. Regulators such as the French Anti-Corruption Agency (AFA), are increasingly looking at whether whistleblower protection against retaliation is maintained during an investigation from a confidentiality point of view, and firms could be subjected to fines if there are breaches to confidentiality.

How do you assess the risk of retaliation against a whistleblower during an investigation?

WV: Most whistleblower reports begin by an employee reporting wrongdoing with their line manager, or even to the wrongdoer itself (8% of cases in the U.K). Therefore, while there are several indicators to look at, such as team size, the most important point to consider is who else in the team knows that the reporter has a concern. Knowing this in advance can let the organization take appropriate preventive measures for retaliation risks.

What role does technology play in streamlining the whistleblower process?

WV: Technology is crucial for whistleblowing and case management. Because of the way that regulators are starting to look at this issue, organizations are subject to the growing pressure of being able to document all the steps of their processes with time-stamped data. Technology makes it easier to not only keep track of any updates, but also to follow up with the whistleblower, and to share the information with other parts of the organization on a 'need to know' basis. Technology also enables you to analyze trends and patterns over time. There is also a lot of room for innovation, as AI could, for example, help in nudging CCOs when it comes to giving feedback to the whistleblower. 

At what stage of development is the ISO 37002 now?

WV: The working group I am currently leading began developing the standard in mid-2018 and is composed of a group of 30 experts from 70 different countries. At its current stage, it is going out to all national standard bodies to gather comments. If you want to give input, get in touch with your national standard body. The plan is to publish at the end of the first quarter of 2021.

Understanding Whistleblower Retaliation

To learn more about best practices on whistleblowing and the latest research, make sure to check out Wim's latest book ''The Whistleblowing Guide: Speak-up Arrangements, Challenges and Best Practices'', and some of our resources: eBook: The Ultimate Guide to Internal Reporting & Investigations, and our webinar: Navigating the Future of Whistleblowing and Case Management.