Chapter 1: Definition of Whistleblowing
In the last two decades, jurisdictions around the world have either enacted or exhibited commitment towards implementing legislations that protect whistleblowers. Studies in the United Kingdom (UK), the United States of America (USA) and EU Member States has shown that whistleblower legislation exists in the areas of consumer law, corporate law, financial regulation, and workplace relations law.
Generally, the approaches to promulgating and enforcing whistleblower protection laws vary significantly in different countries. In France, the Sapin 11 Act, for instance, has very little specific statutory protection for whistleblowers although the French National Commission for Data Protection and Liberties translated as Commission nationale de l’informatique et des libertés (CNIL) has the authority and legal responsibility to protect anyone who makes disclosures under whistleblowing procedures outline by employers. However, some jurisdictions in the United Kingdom have a unified approach to whistleblower protection. The country operates a single whistleblowing legislation, PIDA, which provides protection for private and public sector whistleblowers, as well as processes complaints covering a broad range of misconduct. In contrast, whistleblower protection laws in other jurisdictions such as the US are found in various sources, including: (a) federal and state law and (b) statutory and common law.
Studies has shown the level of protection offered to whistleblowers in the United States depends on the type of employer, the misconduct, and the employee who blows the whistle. This chapter of the Thesis provides an analysis of whistleblower definition covered by legislation in those jurisdictions in order to identify several emerging issues for consideration. The purpose is to find a robust case for greater consistency in legal thresholds and operational requirements imposed by the PIDA, Dodd-Frank Act, the EU Directive, among others as Sarbanes Oxley Act (SOX) and False Claims Act.
Recurring incidents of retaliatory actions against whistleblowers during the coronavirus era have shone more light on whistleblowing. Better understanding of the role of whistleblowers in reference to the definition has become very significant. Society’s expectations are changing, and social parameters are constantly evolving just like the pandemic. Therefore, whistleblowing activities are becoming more politically and socially acceptable due to the whistleblowers’ involvement in revealing important information which otherwise would not be available in the public domain. There is an increasing appreciation that one’s decision to say nothing makes him/her complicit with the wrongdoers.
In seeking to critically analyse various definitions of whistleblowing, it is paramount to understand the premise under which a whistleblower is protected. A “Protected Disclosure” refers to a legal protection accorded to whistleblowers from retaliation. It is an Act enacted to ensure that whistleblowing activities do not culminate in reckless lawlessness. A protected disclosure, thus, includes but not limited to any information about (a) criminal offences (b) failure to comply with legal obligations (c) miscarriages of justice (d) health or safety violations that endanger an employee or the general public (e) environmental degradation. The first Part of the chapter judiciously analyses the definitions of whistleblowing while the second part addresses the correlation between definitions and Covid-19 pandemic.
*Irobiko Chimezie Kingsley