Whistleblower Protection in the UK and USA on COVID-19

1.       Introduction

Whistleblowing is central to achieving good corporate governance within a political system[1]. This explains why countries need reliable mechanisms for identifying and correcting unethical and unlawful practices in organisations. But every action is open to a reaction so it is a common occurrence for organisations to retaliate against whistleblowers. Evidence-based reports from Whistleblower Org show an increase in the number of whistleblower activities during the ongoing coronavirus (COVID-19) pandemic[2]. For example, China’s whistleblowing doctor Li Wenliang, who worked at a Wuhan-based hospital, was arrested for “disrupting public order” by “spreading false rumours” about the virus. The doctor later contracted COVID-19 from a patient and died. But he was mourned as a national hero for the lives he saved[3].

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The United States Department of Labour defines a whistleblower as someone (an employee or external observer) who, without permission but on reasonable grounds, divulges classified information about an organisation[4]. Whistleblowers generally cite commitment to uphold legal and moral standards, including concern for public interest, as their reasons for disclosing private data. Whistleblower protection[5] 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[6]. This study investigates how employees’ involvement in corporate governance through whistleblowing activities can increase transparency and accountability.

1.1 Rationale of the Study

This study therefore, aims at sensitizing people on their moral obligation to enforce accountability, particularly in how governments are allocating resources for health services. Governments’ responsibility to protect the rights of whistleblowers, however, takes centre stage in the research.

1.2 Problem Statement

The UK government has laid-down protective frameworks that guarantee protection and remedies for whistleblowers. But there is no specific method for the implementation of whistleblowing policies under the Public Interest Disclosure Act 1998 (PIDA)[7]

1.3 Objectives of the Study

Based on points raised in previous sections, the objectives of this study are:

(a)     To analyse the existence, purpose and the functioning of whistleblowing policies in the UK and US.

(b)     To examine the effectiveness of legal structures for empowering, protecting and compensating whistleblowers

(c)      To identify COVID-19 whistleblower risks and future implications around the world.

(d)     To understudy actions taken by the British and American government to protect whistleblowers and prosecute offenders during COVID-19 pandemic.

(e)      To recommend highly-effective solutions for all stakeholders

1.4 Research Questions

(a) How does the rights and protection availed to whistleblowers in the UK measure up to their counterparts in America?

(b) What are the relevant whistleblower legislations in both countries?

(c) Under what circumstances are whistleblowers in the UK and the US denied legal protection?

2.       Literature Review

COVID-19 events exposed the systemic weakness in global whistleblower protection laws[8]. Reports from Whistleblowing International Network (WIN) show that gross negligence among governments is responsible for retaliatory attacks on medical professionals and frontline workers who reported unethical practices[9] like Li Wenliang[10] and the following:

•        Dr. Ai Fen from Wuhan Central Hospital, who suffered retaliation from superiors after making unapproved public statements on COVID-19. She later disappeared. Similarly, many doctors and nurses were allegedly summoned by the Chinese police for whistleblowing about coronavirus.

•        Ming Lin (emergency room physician in Seattle, WA) was fired for granting an interview to a newspaper about inadequate testing and lack of protective equipment.

•        Lauri Mazurkiewicz (nurse in Chicago, IL) was fired by North-western Memorial Hospital, for violating disclosure agreement by complaining to friends about the quality of available protective masks.

In London, the National Health Service (NHS) allegedly warned health workers against granting interviews or reporting their health and safety concerns to the media.   These examples highlight the pivotal role of whistleblowers in enforcing accountability and transparency and strengthening public trust[11]. Good corporate governance therefore, lends credence to the effectiveness of whistleblowing activities and the level of protection offered in legal systems[12].

Scheetz and Wall[13] used a global approach to understudy whistleblower rights and found that most countries lack effective legislations and institutional framework for whistleblower protection, thus, making it impossible to prevent abuse of power, mismanagement of funds, corruption and money laundering. The scholar suggested a multi-stakeholder approach that allows partnership among the media, civil society, international organizations, governments and labour protection/anti-corruption agencies[14].

Moore et al[15] agreed that retaliatory actions against whistleblowers present danger to public health and safety, also noting that 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.    

Mintz[16] acknowledged that retaliatory actions against whistleblowers are fairly standardized across organisations and industries. For example, retaliatory actions are classified under: nullification, isolation, defamation and expulsion. Employee is finally forced out of the organisation either by firing or forced resignation. The scholar cited cases where whistleblowers were expelled from an entire industry through blacklisting. Few examples of global whistleblower issues are Snowden, Panama Papers, Cambridge Analytica, Dieselgate and LuxLeaks[17].

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[1] Peltier-Rivest D “The battle against fraud: do reporting mechanisms work?” 2018 Journal of Financial Crime (25) (3) 784-794

[2] Samantha “COVID-19: The Largest Attack on Whistleblowers in the World” https://whistleblower.org/blog/covid-19-the-largest-attack-on-whistleblowers-in-the-world/ (Date of use: 20 June 2020)

[3] Ibid

[4] United States Department of Labour “COVID-19 Response Summary” https://www.whistleblowers.gov/covid-19-data (Date of use: 19 June 2020)

[5] European Parliament “Protecting whistle-blowers: new EU-wide rules approved,” https://www.europarl.europa.eu/news/en/press-room/20190410IPR37529/protecting-whistle-blowers-new-eu-wide-rules-approved (Date of use: 20 June 2020)

[6] McGregor M “Blowing the whistle on attempts to appoint unqualified people under the guise of enhancing representation: Whistleblowing, affirmative action and safety in the workplace” 2014 GST Journal of Law and Social Sciences (JLSS) 4(1) 87-94.

[7] PDA 2000 Section 6(2) mirrors ERA 1996 Section 43C(2).

[8] As per 1

[9] Moore M A, Huxford J and Bethmann J B “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 2017 Public Policy and Governance (29) 227-246

[10] House B, Johnston B L, Johnson P and Worcester C “SEC’s enforcement action against hedge fund adviser for retaliation against a whistleblower highlights challenges employers face” 2014 Journal of Investment Compliance (15) (4) 7-10. https://doi.org/10.1108/JOIC-08-2014-0031

[11] Nath N, Othman R and Laswad F “External performance audit in New Zealand public health: a legitimacy perspective” 2019 Qualitative Research in Accounting & Management (17) (2) 145-175

[12] As per 1

[13] Scheetz A M and Wall J “Making Crime Pay: Timing of External Whistleblowing” 2019 Baker C R (eds) Research on Professional Responsibility and Ethics in Accounting (22) 1-30

[14] As per 6

[15] As per 9

[16] Mintz S “Whistleblowing Considerations for External Auditors under Dodd-Frank: A Blueprint for Future Research” 2015 Journal of Professional Responsibility and Ethics in Accounting (19) 99-128

[17] McDaid E, Boedker C and Free C “Close encounters and the illusion of accountability in the sharing economy” 2019 Accounting, Auditing & Accountability Journal (32) (5) 1437-1466.