There’s a lot more to writing an effective whistleblower protection law than including the correct legal phrasing. Words matter, but so does the meaning behind the words.
Whistleblowing International, European Center for Whistleblower Rights, and the Center for Whistleblower Rights & Rewards have helped policy-makers and elected officials in many countries draft, pass, and implement whistleblower laws. The process is always different, usually depending on the officials’ previous knowledge of the issue. Typically, the level of awareness is inversely proportional to the officials’ hesitance to grant strong whistleblower rights.
Over the years, we’ve learned a great deal about this reluctance. What we’ve seen is that officials’ arguments against whistleblower rights correspond directly to the very reasons we need whistleblower protection laws in the first place.
Most of the resistance to protecting whistleblowers – and the reasons people usually are denied protection in real-life cases – stem from these questions:
- Was the person acting in good faith?
- What was the person’s motivation?
- Was the person’s evidence accurate or complete?
- Did the evidence lead to an investigation or prosecution?
- Did the person make the report to the right office and in the proper way?
- Did the person prove he or she was fired because of making a disclosure?
These are the natural, almost instinctual reactions to a whistleblower: the person must have had an ulterior motive, the person didn’t actually prove misconduct occurred, the person should have told someone else or in a different way, and the person couldn’t prove they were fired because they made a report.
This is why international standards for whistleblower laws don’t include a good faith or motivation test, do not require the person to prove anything, do not require an investigation to result from the report, give people options on how to make a report, and require employers to prove why they fired a whistleblower.
A lot of work needs to be done before officials themselves overcome these natural reactions to a whistleblower. Officials do not have to like the person, agree with the person, or think the report was important. Officials should not judge the person’s behavior or put themselves in the shoes of the whistleblower and contemplate what they would do in the same situation. In fact, whistleblower laws do not give officials the authority or the discretion to do this. Their opinions are irrelevant. But these opinions reflect the very real instinctual reactions to a person who steps up and reveals hidden evidence of a crime.
In our work with policy-makers, we always talk about the spirit of the law: how can the law – however imperfect it may be – achieve its goals of protecting employees from reprisals and ensuring the evidence they report is fully investigated. Officials need to understand that the law is not a detached bureaucratic exercise. It is an active, living tool that is there to negate and overcome the skepticism of whistleblowers.
If the officials themselves act upon this skepticism and allow their own opinions and instincts to cloud their judgment and interfere with their official duties, then there is very little chance of these laws working in practice. Promotional campaigns from public agencies encouraging people to make reports and promising protections will be empty and disingenuous. Employees will not be protected. Their careers and personal well-being will be destroyed. The crimes they report will not be investigated. Criminals will continue to break the law with impunity.
Hope is growing in many places that whistleblowers finally are benefitting from the rights they have been granted. We applaud officials who have overcome their hesitance, and we continue to encourage those who still harbor doubts.