Whistleblower Protection and COVID-19

The pivotal role of accountability and transparency in building and maintaining public trust in organizations is indisputable. How the Chinese government and World Health Organization (WHO) undermined public health at the initial and peak stage of COVID-19 pandemic, and consequential global spread of the deadly virus, buttress this assertion. Good corporate governance therefore lends credence, in most cases, to the effectiveness of whistleblowing activities and the level of protection offered in legal systems (Samantha., 2020; Nath et al., 2019; Alam et al., 2019).

According to the United States Department of Labour, a whistleblower is an individual who—without authorization—divulges classified information about an organization. The disclosed private data is usually related to fraud, corruption, mismanagement etc. Whistleblowers generally attribute their actions to selfless concern and commitment to public interest. The term “whistleblower” was first used to refer to public office holders who reported corruption, waste of resources and mismanagement in the government. Whistleblowing now includes activities of employees in public/private establishments which alert a larger group of past or present setbacks to their interests as a result of unethical conducts. On the other hand, whistleblower protection refers to the international framework which offers legal cover from disciplinary or discriminatory actions against people who report workplace wrongdoings to competent authorities in good faith. Whistleblowing is an act of good faith conducted on reasonable grounds. It is usually buoyed by commitment to legal and moral standards (Noam & Brian., 2020; Alam et al., 2019).

Why is whistleblower protection a trending issue?

Whistleblower protection is the bedrock of transparency reforms in corporate governance but most countries are yet to enact and strictly enforce legislations for this purpose (Waheduzzaman., 2019). For example, the coronavirus pandemic which originated from Wuhan, China could have been averted if the Chinese government and WHO responded swiftly to claims by Li Wenliang, the whistleblowing doctor who first warned colleagues of the fast-spreading disease. Unfortunately, due to the government’s strong internal anti-corruption framework which suppresses freedom of speech, Wenliang was arrested, detained and charged for disrupting public order by spreading false rumours. He was later exonerated from the charges but his acquittal was a result of public outcry. The doctor who first reported existence of COVID-19 to the international community in December 2019 eventually contacted the disease in late January 2020 and died the following month (Helen., 2020; McDald et al., 2019).

However, his courage and retaliatory action from the Chinese Communist Party (CPP) highlight lack of commitment to whistleblowing protect even in developed nations, inclusive of the United Kingdom, Canada, France and USA, where nurses and doctors were reportedly warned, disciplined and even fired for reporting workplace concerns about coronavirus precautions (Mintz., 2015). This highlights the need for an institutional, normative and judicial framework at the global level where governments and corporate organizations are most likely to choose profit maximization (including bribery and money laundering) to the detriment of the law—a circumstance which calls for collaborative efforts among civil society groups, media, international organizations, governments, private sector, anti-corruption and labour protection agencies. Few examples are Snowden, Panama Papers, Cambridge Analytica, Dieselgate and LuxLeaks (Moore et al., 2017; House., 2014).

Global approach in whistleblower protection

Despite recommendations and protective standards set by Transparency International, whistleblower activities have been minimal around the world due to the fear of employer retaliation, which may result in job termination, demotion, or other disciplinary action. But the major problem is lack of standardized implementation of the United Nations Convention against Corruption (UNCAC) ratified by over 160 countries for the protection of whistleblowers. For example, the Council of Europe developed two major legal documents vis-a-vis the Civil Convention on Corruption and the Penal Convention on Corruption provide whistleblower laws and mechanisms to receive reports, disclosures and investigate wrongdoings in the public sector. But a 2017 OECD survey found such laws to be incomprehensive, scandal-driven, and ineffective because they are not in compliance with international standards.

  • Canada: Whistleblower protection in Canada is a responsibility of the Office of the Public Sector Integrity Commissioner (PSIC) which protects public servants from reprisal attacks after disclosing wrongdoing. It also offers cover for anyone who has cooperated in investigations. The main objective of PSIC is to improve public confidence and trust in Canada’s federal public institutions as well as strengthen public servants’ integrity. The Office was established by the Public Servants Disclosure Protection Act (The Act) of 15 April, 2007 which made it an independent and permanent Agent of Parliament, offering whistleblower protection to over 500,000 public servants. A setback to this goal is that not all disclosures result in an investigation because the Act stipulates the jurisdiction of the Commissioner and, under some circumstances, gives the option not to investigate. This challenge was responsible for lapses in Canada’s handling of COVID-19 cases related to fraud and profiteering. To encourage citizens’ commitment to enforcing accountability in acceptance and use of government financial supports—including scientific evidence and the administration of health services, the Act also mandated the Public Servants Disclosure Protection Tribunal (PSDPT) which protects whistleblowers in the public sector by hearing reprisal complaints—particularly those referred by the Public Sector Integrity Commissioner. The Canadian government, thus, metes out disciplinary actions against persons/organizations who take reprisals. Compensations are also available for complainants who faced retaliatory actions from their employers. How these mechanisms functioned during COVID-19 pandemic will be discussed in the research.
  • United Kingdom: Whistleblower rights in the United Kingdom was established by the Public Interest Disclosure Act 1998 (PIDA) which allows protected disclosures whether a non-disclosure agreement was signed between past or present recruiter and an employee or not. A debate on if there should be further restrictions on confidentiality clauses was held in 2019. But, most remarkably, the “The Freedom to Speak Up Review” outlined twenty principles intended to improve whistleblower protection for NHS workers. Relevance of PIDA, which amends the Employment Rights Act 1996, and how it enhanced NHS performance during the COVID-19 pandemic will be discussed in the forthcoming research.:

Choice of country for this academic inquiry would be Canada, with references made to whistleblower protection laws and issues in countries like France, Japan, UK, and the United States.

Conclusion

From the results of this study, recommendations will be made on how governments can improve legal frameworks to protect whistleblowers, build trust among employees and observers, revitalise whistleblowing channels, improve corporate compliance and prevent unnecessary loss of lives in the future – as would have been the case if the Chinese government had taken responsibility to protect its citizens and the world, long before Li Wenliang’s public outcry. But it is necessary for the whistleblowing standards/principles to be adapted to each country’s political, social and cultural contexts, including their existing legislative frameworks.

References

Government of Canada, PSIC. “Background, Objectives, Scope”. Office of the Public Sector Integrity Commissioner. Retrieved 16 June 2014.

European Parliament, Whistleblower protection regulation, available online at

http://www.europarl.europa.eu/news/en/press-room/20190311IPR31055/first-euwide-protection-for-whistle-blowers-agreed

Organisation for Economic Co-operation and Development. 2016. Committing to Effective

OECD, 2017, “Whistleblower Protection,” Paris: OECD Publishing, https://www.oecdilibrary.org/docserver/9789264252639en.pdf?expires=1544637676&id=id&accname=ocid77016197&checksum=5110B09709D19551EE60C446FF251D21

Helen D., 2020, “Chinese inquiry exonerates coronavirus whistleblower doctor,” The Guardian, https://www.theguardian.com/world/2020/mar/20/chinese-inquiry-exonerates-coronavirus-whistleblower-doctor-li-wenliang

Noam S. & Brian M.R., 2020,”Nurses and Doctors Speaking Out on Safety Now Risk Their Job,” New York Times, https://www.nytimes.com/2020/04/09/business/coronavirus-health-workers-speak-out.html

House B.Johnston B.L., P. and Worcester, C. (2014), “SEC’s enforcement action against hedge fund adviser for retaliation against a whistleblower highlights challenges employers face”, Journal of Investment Compliance, Vol. 15 No. 4, pp. 7-10. https://doi.org/10.1108/JOIC-08-2014-0031

Moore, M.A., Huxford, J. and Bethmann, J.B. (2017), “National Security Whistleblowers and the Journalists Who Tell Their Stories: A Dangerous Policy Dance of Truth-finding, Truth-telling, and Consequence”, Corruption, Accountability and Discretion (Public Policy and Governance, Vol. 29), Emerald Publishing Limited, pp. 227-246

McDaid, E., Boedker, C. and Free, C. (2019), “Close encounters and the illusion of accountability in the sharing economy”, Accounting, Auditing & Accountability Journal, Vol. 32 No. 5, pp. 1437-1466.

Mintz, S. (2015), “Whistleblowing Considerations for External Auditors under Dodd-Frank: A Blueprint for Future Research”, Research on Professional Responsibility and Ethics in Accounting (Research on Professional Responsibility and Ethics in Accounting, Vol. 19), Emerald Group Publishing Limited, pp. 99-128.

Waheduzzaman, W. (2019), “Challenges in transitioning from new public management to new public governance in a developing country context”, International Journal of Public Sector Management, Vol. 32 No. 7, pp. 689-705.

Samantha F., 2020, “COVID-19: The Largest Attack on Whistleblowers in the World,” Whistleblower Org, https://whistleblower.org/blog/covid-19-the-largest-attack-on-whistleblowers-in-the-world/

Alam, M.M., Said, J. and Abd Aziz, M.A. (2019), “Role of integrity system, internal control system and leadership practices on the accountability practices in the public sectors of Malaysia”, Social Responsibility Journal, Vol. 15 No. 7, pp. 955-976.

United States Department of Labour, 2020, “COVID-19 Response Summary,” https://www.whistleblowers.gov/covid-19-data

Nath, N., Othman, R. and Laswad, F. (2019), “External performance audit in New Zealand public health: a legitimacy perspective”, Qualitative Research in Accounting & Management, Vol. 17 No. 2, pp. 145-175.

*Academic writing by Irobiko Chimezie Kingsley