The retaliation and intimidation problem
Whistleblowing is vital. As well as uncovering misconduct, it forms a crucial aspect of an organisation’s ethical culture and compliance framework. Whistleblowers have helped put an end to illegal activities and in some cases, they have gone even further, saving lives and recouping vast sums of money. For some organisations, such actions are simply not welcome with intimidation and retaliation utilised to lower employees’ willingness to expose wrongdoing.
Whistleblower retaliation takes the form of an adverse action that is intended to dissuade an employee from raising a concern about wrongdoing. It can take many forms, ranging from obvious types of retaliation such as firing, demotion or reduced pay to more subtle strategies such as excluding an employee from meetings or team events. Essentially, it is a form of punishing the employee and it is time-dependent, generally occurring after the whistle has been blown. It does not necessarily have to occur immediately afterwards but at any point after the report has been made.
The problem is real and global. Separate to the Bradley University study, research featured in a report by The Ethics Institute found that 60% of people in France who raised concerns experienced some form of personal disadvantage or retaliation in response, along with 53% of those polled in Australia and 52% of respondents in Ireland. In addition, 50% of people Germany suffered the same treatment for speaking out, along with 45% in the UK.
Different forms of retaliation
As mentioned earlier, retaliation can take many forms, and some are so subtle that whistleblowers only realise a long time afterwards that certain disadvantages they encountered were acts of punishment. Given that the list of retaliatory measures an employer can take is exhausting, here is an overview of some key types that appear most frequently:
Bullying or harassment: The whistleblower can be subject to verbal attacks and slurs by their manager or colleagues in response to their report. Systematic bullying can also occur via phone calls or email. It can also happen when the whistleblower is shamed in front of other staff members.
Demotion or adjustment of job duties: This is an overt form of retaliation whereby the whistleblower can be removed from their working position or see their job duties adjusted. The latter scenario can see the person in question lose their decision-making power.
Dismissal: Termination of employment is an obvious type of retaliation, and in many cases, the whistleblower may be able to file a claim under protective legislation.
Blacklisting: As retaliation for whistleblowing, corporations can “blacklist” former employees in an effort to interfere with their chances for future employment.
Disciplinary charges or suspension: It is not uncommon for whistleblowers to be punished on trumped-up disciplinary charges, resulting in the loss of privileges. Suspension can also occur which is often a prerequisite to disciplinary proceedings.
Unfair performance evaluation: Employees with a historically positive performance evaluation may encounter harsh or hypercritical feedback after exposing misconduct. This element can also be part of a multi-prong retaliation strategy.
Denying benefits: Benefits can be withheld from the whistleblower as punishment and an example could include the denial of a vacation request.
Refusal to provide a reference: When the employer and the whistleblower part ways, the organisation refuses to provide him or her with a reference. Alternatively, an adverse reference could be provided when the whistleblower applies for another job.
The extreme scenarios: In extreme cases, retaliation can escalate even further, taking the form of violence such as physical assault or murder.
Legislative steps to clamp down on retaliation
It is important to mention that some governments are accelerating measures to prevent retaliation against whistleblowers. In the United States, for example, whistleblowers are protected from retaliation “for disclosing information that the employee or applicant reasonably believes provides evidence of a violation of any law, rule, regulation, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety”.
In Europe, there were no universal measures to prevent retaliation against whistleblowers as the EU relied on a patchwork network of national legislation. That evenutally changed, however, with the introduction of the EU Whistleblowing Directive explicitly forbidding any form of retaliation. Most EU member states missed the original transposition deadline in late 2021 and significant progress was not seen until late 2022 when the majority of new laws were in place.
It is important for whistleblowers to familiarise themselves with legal protections such as the legislation outlined above so that in the event of employer retaliation, they remain fully aware of their rights.
Tips for whistleblowers fearing retaliation
There are a number of factors someone needs to keep in mind before speaking out. As already mentioned above, consulting local protection legislation ahead of filing a report affords a potential whistleblower considerable legal advantages. For US whistleblowers, this could involve familiarisation with the Whistleblower Protection Enhancement Act of 2012 while for those based in Europe, it would be important to read up on the EU Whistleblowing Directive, particularly its member state-specific requirements.
When coming forward, the best place to start is your company’s whistleblowing framework, procedures and internal reporting channels. An effective company policy will provide clear guidelines about the internal whistleblowing process, how to raise a concern as well as outlining legal protections or restrictions.
If this is unavailable or unclear, it is advisable for the person in question to keep records stored away from the workplace as the employer may limit access once the complaint is made. However, you should be aware that this could be considered as a data or confidentiality breach, depending on the nature of the records concerned and so you may wish to take independent legal advice before doing so. It is also worth considering remaining anonymous to maximise protection which means that the organisation does not know who to target for retaliation.
If the risk of whistleblower retaliation is high, encrypted messaging apps or accounts with fake names can also prove beneficial. It is vital to avoid leaving any identifiers, i.e., any information that the organisation can use to pinpoint the person making the complaint. Lastly, it is essential for whistleblowers to stick to the hard facts and avoid exaggerating claims or making unfounded accusations that may not be upheld in a formal investigation further down the line.
Tips on what to do when your employer retaliates
In the event that an employee experiences retaliation, it is enormously helpful to gather hard evidence about the type of behaviour involved. Some tips on how to do this without getting into danger are provided by The Ethical Society:
- Keep detailed notes of all retaliatory actions, e.g., keep track of what was said and by whom as well as whether there were any witnesses
- Store the notes privately away from your workplace or workplace devices. Keep hard copies of documents and email correspondence
- Make backups of your storage devices and cloud files
- Ensure your phone can be locked with a PIN or fingerprint
- Save all emails, no matter how important they seem at the time, and make regular backups
- Become familiar with relevant whistleblower legislation in your market
- Seek emotional support by seeing a psychologist or psychiatrist if necessary
- Maintain a diary about your case
Organisations with a healthy corporate culture will encourage whistleblowers to speak out and report any retaliation they experience. In this case, it is advised to utilise the company’s whistleblowing system or to approach the Ethics or Compliance Officer. Given that this is not the case in all companies, The Ethical Society recommends contacting your direct line-manager, another manager, HR or an executive. “As a rule of thumb: report retaliation to the person or entity that you trust most and who you believe will act on your report”.
If you suffer ill-treatment due to blowing the whistle, you should respond to all allegations made against you. That means pointing out that the whistleblower retaliation occurred as a result of speaking out, defending yourself against all allegations, linking your whistleblowing report with the response and obtaining legal advice under certain circumstances.
If the retaliation from your employer continues, it is worth considering lodging a grievance and making it clear that it is linked to the whistleblowing concerns raised. If this is unsuccessful, a further approach can involve bringing a claim against your employer. This can be conducted in response to actions such as dismissal, unfair pay deductions, discrimination, changes in the workplace or working conditions, etc.
Finally, be prepared for a long journey and do not hesitate to seek assistance!
Tips for organisations on preventing retaliation
Organisations have to realise that whistleblowers bring enormous benefits, whether it means minimising risks, creating an open culture, driving better communication or recouping costs. In fact, the freedom to raise questions and point out problems is a core aspect of a healthy and open corporate culture and studies have proven that employees have a higher willingness to report wrongdoing under the right conditions. Organisations also need to ensure that employees feel supported. Therefore, it is essential that business leaders take steps to implement an effective whistleblowing policy and foster a culture of integrity. This can be achieved through the following steps:
Develop a whistleblowing policy: Implement appropriate reporting channels and procedures for employees to highlight misconduct. This will also have the effect of improving the organisation’s culture, accountability and significantly reducing any fears of retaliation.
Communicate the policy with employees: Whistleblowing systems tend to be useless if their existence is not reported to employees. This can be done via a company’s internal newsletter, website, intranet, posters or message boards. Here, it is key to emphasise that whistleblowers will be protected from retaliation.
Provide whistleblowers with support: Whistleblowers should be provided with the best possible tools such as a state-of-the-art digital reporting system with a high degree of anonymity. Support should continue throughout the process from the provision of legal advice to the involvement of a psychologist (if necessary).
Maintain communication: The EU Whistleblowing Directive allows for constant communication with the individual making the complaint. Organisations, regardless of their location, should act similarly in order to monitor the status of the investigation and whether any forms of retaliation have occurred.
Training: Intensive training should be provided for all employees, especially managers. The latter should be educated on the importance of anonymity and how to deal with reports.
Ensure investigations are carried out independently: Entrust investigations to an impartial or independent body rather than the management. In certain cases, managers may be more interested in pinpointing the identity of the whistleblower than addressing the problem he or she highlighted.
Summary
Whistleblowers bring enormous benefits to businesses, but all too often the brave act of speaking out results in retaliation to the detriment of an individual’s career, livelihood and mental health. In some parts of the world, progressive protective legislation is finally making a difference but much of the globe is still operating under a fragmented network of obscure legislation that fails to prevent retaliation.
While employees can take a number of measures to safeguard themselves in the event of retaliation such as anonymisation, backups and stored email exchanges, they shouldn’t have to. Whistleblowers protect companies, drive better communication, foster trust and prevent both risks and financial penalties. It is important organisations recognise those advantages and take proactive steps to eliminate retaliation through the development of a corporate culture founded on trust, integrity and accountability.
