whistleblowers pay far too high a price
Society depends on individuals taking personal responsibility by whistleblowing. Unfortunately, many whistleblowers still pay far too high a price today, says NHH researcher Birthe Eriksen
Whistleblowers must receive real protection in order for whistleblowing to be an effective mechanism for detection.
"We must acknowledge the costs and the consequences of providing effective whistleblowing. We have not achieved this yet," says Birthe Eriksen, Lecturer at the Department of Accounting, Auditing and Law, NHH.
The right to give notification
Earlier this year, Birthe Eriksen defended her PhD at the University of Bergen, with the thesis "Arbeidstakers rett til å varsle om «kritikkverdige forhold» etter arbeidsmiljøloven paragraf 2-4 (1). Med særlig vekt på varsling i aksjeselskap" [Employees' right to notify about 'censurable conditions' pursuant to section 2-4 (1) of the Working Environment Act. With particular emphasis on notification at limited liability companies].
Here she analyses employees' right to report censurable conditions, particularly whistleblowing by employees of limited liability companies.
According to the Working Environment Act, a whistleblower is an employee who exercises their right to report censurable conditions at the undertaking at which they are employed. The law is intended to protect whistleblowers from both formal retaliation in the form of termination, dismissal and cautions, and more informal reactions like surrender of personal data to colleagues and unlawful demands for access to employees' e-mail and private files, bullying and harassment.
Public and private
The common denominator for actual whistleblowing is notification of unlawful circumstances, explains Eriksen.
"The interests challenged by the employee with his/her whistleblowing may have a great impact on the risk to which the employee is exposed. In the public sector, the greatest resistance comes from political and/or professional interests, like Bergen police detective Robert Schaefer."
In the private sector, however, there are usually strong financial interests.
"The public sector has other challenges than the private sector. There is reason to believe that the differences are related to the costs associated with conflicts resulting from whistleblowing. It appears to be easier to pulverise responsibility by escalating conflicts in public enterprises, while private companies must consider their reputations and the bottom line to a greater extent. However, we do not know much about the extent to which businesses can silently get rid of whistleblowers. There is a pertinent term used in the United States for whistleblowers who are 'bought out' of businesses: 'buying silence'."
"I didn't know"
"How far can a chief executive get by saying that they didn't know?"
"At all businesses, strict requirements govern the handling of whistleblowing, but it is my impression that there is still a great deal of immature and unploughed ground in this area. In my thesis, I argue that it is a necessary legislative development that the courts will need to focus more on the absence of adequate, good procedures, to the detriment of employers who do not have such. In the United Kingdom, which is about 10 years ahead of our legislative developments, we see precisely that courts to an increasing extent penalise employers who do not have these affairs in order."
"In Norway, this has not been dealt with by the Supreme Court," explains Eriksen, "but in a couple of lower instance judgments, the court has found that the lack of procedures must be of importance to the assessment of liability."
Separate the wheat from the chaff
The law does not stipulate requirements for the form of the notification, which may be made in writing or verbally, externally and internally. The question about what represents censurable conditions that trigger special protection for whistleblowers is not always understood equally well.
"This is why employers are under an obligation to establish internal systems. An internal whistleblowing procedure will precisely help separate the wheat from the chaff, in other words create clarity and predictability for both employers and employees. If a manager at a seminar is drunk and wants to have a confrontation with a subordinate manager, who later reports the incident, this will not be considered whistleblowing, because there is insufficient societal interest. A violation of an individual employee's working conditions is only of interest to the individual, and thus does not represent notification of a matter that is critical to society, only a violation of the person's employment agreement. The law has other means of addressing such a situation."
The law also contains restrictions regarding who can provide report what. People cannot blow the whistle on an organisation they are not employed by. The legal status is here very unclear at best, she believes.
A whistleblower official
According to Eriksen, politicians should thoroughly consider whether Norway should have a whistleblower official or a similar arrangement. In the Monika case in Bergen, the Norwegian Bureau for the Investigation of Police Affairs considered whether there had been criminal retaliation against the police officer who reported the investigation of Monika's death. The Bureau questioned the lack of action of the Norwegian Labour Inspection Authority and its mandate in whistleblowing cases.
"Already in 2003 the Authority warned about this situation in the preparatory works to the current Act. At the time, the Authority stated that it did not have the mandate or the resources to handle whistleblowers, as required by the law. The situation and its consequences have luckily surfaced now."
"Either the Norwegian Labour Inspection Authority and other monitoring agencies must receive substantially greater resources or the establishment of a whistleblower official or similar agency must be considered," states the NHH researcher.
Shunned from working life
Eriksen became interested in whistleblowing about 15 years ago. At the time, few people understood whistleblowing. A lack of knowledge and established procedures for whistleblowing at enterprises meant that the treatment of whistleblowing and whistleblowers was much worse than at present.
"I saw several incidents where successful, highly-educated people, who had never been involved in trouble at work, were put on sick leave and practically shunned from working life after they had reported censurable conditions. This phenomenon fascinated me."
Eriksen continued her education in organisation and management, and specialised in organisational psychology. In addition to her work as a lawyer, she was elected to the city council and the county council for the Norwegian Conservative Party.
"When you are involved in politics, you get particularly good knowledge of the interests at play when people don't speak up. This perspective has driven me. What societal interests are we playing with when we don't take whistleblowing seriously? There can be critical information that does not reach the decision-makers, like before 22 July 2011, or we can have something like the Robert Schaefer case, who notified the Bergen police leadership. Or Yara, which turned into the largest corruption case in Norway. In some cases, it is a matter of corruption that paralyses markets and keeps undemocratic forms of governance alive. Whistleblowing in the pharmaceutical industry can represent a matter of life and health."
Pissing in the well?
"Are you surprised by the major cases in recent years?"
"I'm just pleased that these cases have come to the surface. This has resulted in an enormous development of knowledge and greater awareness. There is great interest in the topic of whistleblowing today."
Eriksen gave her first lecture on the subject in 2005. The venue was a Rotary club in Bergen. "Most people hardly knew anything about this topic," she says.
"During the lecture, a CEO got up and stood on his chair and shouted that I had to stop protecting troublemakers and people who pissed in the well. There have been tremendous developments since then and until today, and I have had the pleasure of following them up close the whole time."
"It can be challenging to build good whistleblowing systems, but even more risky than weak systems and lack of competence are situations where there is a lack of willingness and where some people have an unlawful interest in maintaining the status quo. This can make it simply dangerous to be a whistleblower," she says.
Eriksen mentions research that shows that the higher up in an organisation the censurable conditions are found, the greater the risk of retaliation.
"In many cases over the years that I have worked with these challenging and exciting field, I have seen a pattern in the relationship between the interests under threat, conflict escalation and the risk of retaliation," concludes Eriksen.