Excerpted from a speech delivered in February 2002, on Investigations in the Workplace.
hose prepared to disclose wrongdoing, or considering it, typically have three major concerns. One is that confidentiality be ensured. Another is that they be protected from subsequent and related job reprisal. Third, is whether the disclosure will be taken seriously, acted upon and result in the righting of a wrong.
Experience suggests that for most actual or potential whistle-blowers, job reprisal is a far bigger concern than maintaining confidentiality. They typically understand that in order to proceed with an investigation, it may become apparent to the alleged wrongdoer and others who the whistle-blower is, simply by the questions asked and documents requested. They also typically understand that absolute confidentiality cannot be assured after an investigation is completed, due to legal rights of the alleged wrongdoer.
At the same time, however, those mandated to receive and investigate allegations of wrongdoing must ensure that records and other documentation related to the case are maintained as securely as possible, and that the identity of the discloser is kept confidential as long as possible.
The scope of the protection of confidentiality extends to the discloser of wrongdoing, the alleged wrongdoer and witnesses.
Reprisal may take the form of being ostracized both by superiors and colleagues, or being branded disloyal, unreliable and troublesome. The reprisal may be in the form of intimidation or harassment. Justifiably expected promotions may not be forthcoming. It may take the form of an otherwise unjustifiable transfer to a less responsible position in a less interesting locale.
Whatever mechanism is established to investigate allegations of wrongdoing in the institution must, therefore, have as an essential part of its mandate that of investigating allegations of job reprisal linked to whistle-blowing, with the power to reverse such reprisals and sanction those guilty of them.
Addressing the issue of job reprisal in an organization should not be limited to reaction after the event. There are important proactive steps as well, including an educational focus aimed at changing attitudes towards disclosures of wrongdoing and aimed at convincing managers, executives and board members that reprisal inhibits honest dialogue, compounds the wrongdoing, and is unjust and unacceptable.
Many whistle-blowing policies only go so far as allowing whistle-blowing under specified circumstances and in accord with indicated procedures. It’s a good first step, but the necessary additional step is to encourage it, and from the highest levels of the institution.
Rather than being subject to job reprisal, good faith disclosures of wrongdoing ought also to be rewarded. They should be flagged as meritorious acts in the interest of the public or shareholders, made the object for letters of commendation and included as a criterion for promotions. Some organizations go so far as sharing a percentage of the money saved with a whistle-blower who reported gross waste.
Employees must have faith that mechanisms and agencies mandated to investigate allegations of wrongdoing are objective, comprehensive and fair or they will not inspire confidence and whistle-blowers will not come forward.
To achieve the reality and perception of fairness and objectivity it will sometimes require an investigator to withdraw and pass the case to someone else. There could be a number of circumstances justifying this, among them a conflict of interest, a close relationship with one or another party or a persistent and demonstrated bias on the side of employers or employees.
Striving to make an investigation comprehensive starts with the realization that more than one person, and at different levels of the organization, may share varying degrees of responsibility for an act or pattern of wrongdoing. A specific employee identified by a whistle-blower may turn out to be the least responsible in view of those at higher levels who initiated the activity and assigned that employee to carry it out.
A major factor contributing to the cynicism of employees is the widespread perception in some levels of organizations that they are being held to more rigorous standards than those at higher levels. Regrettably, that perception is all too often based on fact.
What contributes to the perception is that if anyone is blamed for wrongdoing, all too often it will be an employee who had little or no choice or responsibility in the activity, while those at higher levels who initiated, supervised or tolerated the activity are untouched.
The not infrequent incidents of “scapegoating” of this kind underline the need to ensure that the applicable standards and codes of conduct apply with equal rigor at all levels of the organization, and not just on paper but in practice.
Edward Keyserlingk is the first Public Service Integrity Officer of the Government of Canada.