Organizational Whistle blowing Policies

Organizational Whistle blowing Policies

Organizational Whistle blowing Policies

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This paper explores the possible impact of

the recent legal developments on organizational whistle-

blowing on the autonomy and responsibility of whistle-

blowers. In the past thirty years numerous pieces of

legislation have been passed to offer protection to whis-

tleblowers from retaliation for disclosing organisational

wrongdoing. An area that remains uncertain in relation to

whistleblowing and its related policies in organisations, is

whether these policies actually increase the individuali-

sation of work, allowing employees to behave in accor-

dance with their conscience and in line with societal

expectations or whether they are another management

tool to control employees and protect organisations from

them. The assumptions of whistleblower protection with

regard to moral autonomy are examined in order to

clarify the purpose of whistleblower protection at work.

The two extreme positions in the discourse of whistle-

blowing are that whistleblowing legislation and policies

either aim to enable individual responsibility and moral

autonomy at work, or they aim to protect organisations

by allowing them to control employees and make them

liable for ethics at work.

KEY WORDS: whistleblowing, moral autonomy,

ethical distance, moral agency

Introduction

The increased focus on ethics and ethical behaviour

in organisations has led to greater concerns about

whistleblowers and their protection. In the early

1970s, Ralph Nader was the most prominent rep-

resentative of a growing movement which aimed to

offer legal protection to whistleblowers. Nader et al.

(1972, p. vii) define whistleblowing as ‘‘an act of a

man or woman who, believing that the public

interest overrides the interest of the organisation he

serves, blows the whistle that the organisation is

involved in corrupt, illegal, fraudulent or harmful

activity’’. Nader’s activism pointed to a conflict

between the ethos of the ‘organisation man’ and

growing public criticism of organisations’ separation

from society’s ethics. In this sense, the call for

whistleblower protection must be seen as an expo-

nent of the call for more accountability of organi-

sations to society.

Research on whistleblowing covers its psycho-

logical and social dimensions (e.g. Miceli and Near,

1984, 1985, 1991), legal aspects (e.g. Miceli and

Near, 1992; Miceli et al., 1999), cultural aspects of

the phenomena (e.g. Park et al., 2005; Rashid and

Ho, 2003; Tavakoli et al., 2003), conceptual delin-

eations (e.g. Elliston, 1982; Jubb, 1999) organisa-

tional responses to legislation (e.g. Hassink et al.,

forthcoming; Near and Dworkin, 1998) and analysis

of the different moral arguments used for defending

whistleblowing protection (e.g. Vandekerckhove,

2006). There is, however, no consensus whether

whistleblowing policies in organisations actually in-

crease the individualisation of work, allowing

employees to behave in accordance with their con-

science and in line with societal expectations (e.g.

Berry, 2004), or whether they are another manage-

ment tool to control employees and protect organi-

sations from them (e.g. Alford, 2001; Martin, 2003).

The increased protection of whistleblowers that

legislation offers in the U.S., has been challenged by

an increase in court cases where judges are asked to

enforce secrecy agreements against whistleblowers

(Dworkin and Callahan, 1998). Such agreements,

Dworkin and Callahan argue, offer employers extra

protection. An important aspect of this protection

offered to employers is that employees are required to

Journal of Business Ethics (2008) 82:107–118 � Springer 2007 DOI 10.1007/s10551-007-9565-3

first report wrongdoing internally. In Europe, where

discussions about whistleblowing legislation have

recently commenced in most parliaments and cor-

porations have started to draw up and implement

organisational whistleblowing policies in order to

comply with the Sarbanes–Oxley Act, diverse stances

have been adopted regarding the obligatory or op-

tional status of disclosing organisational wrongdoing.

Commenting on the U.S. context, Tippett (2006)

notes that state and federal law requires some pro-

fessions to report suspected child abuse and that New

Jersey and Florida require attorneys to reveal a client’s

intent to commit a future crime, but that overall

statutes that force employees to blow the whistle are

exceedingly rare. With regard to Europe, Hassink

et al. (2007) comment that the majority of the

European organisational whistleblowing policies

adopted a tone that was ‘‘at least moderately

authoritative’’, with codes speaking of ‘‘a require-

ment or duty to report violations’’, and employees

who ‘must’, ‘should’ or ‘are expected to’ report

them. More importantly, Hassink et al. found that in

30 percent of the policies reviewed, ‘‘it was made

clear that failing to report a violation (remaining si-

lent about a breach or concealing information about

one) is a violation in itself.’’ In France, the ‘Com-

mission Nationale de L’Informatique et des Libertés’

(CNIL), in its recommendation dated 10 November

2005, on the implementation of whistleblowing

policies, cites a letter from the French Minister for

Labour and Social Affairs stating that ‘‘the use of

whistleblowing systems must not be compulsory, but

be merely encouraged,’’ and that a compulsory

reporting requirement would be out of proportion

with its objective (CNIL, 2005). Similarly, the Bel-

gian privacy commission in 2005 issued a recom-

mendation stating that whistleblowing schemes may

not impose mandatory reporting on employees, and

therefore, use of the reporting scheme must be op-

tional (Privacy Commission, 2006). Meanwhile, the

whistleblowing policy of the European Commission,

implemented after the Cresson crisis, maintains a

mandatory disclosure procedure (Art 22a of the Staff

Regulations of Officials of the European Commu-

nities, see OLAF, 2005).

Recent developments at work such as the changes

in the employment relationship, the psychological

contract to short term, no long-term commitment

and life long employment (Sennett, 1998) and the

extinction of the organisation man (Werhane, 1999),

who would override other concerns for the benefit

of the organisation, may also affect whistleblowing,

its purpose and process. This matter is part of a

bigger web of questions that relate to ethical

behaviour at work, raised in the organisational

context. They include the issues of moral agency,

personhood of persons and organisations, autonomy

and responsibility (Tsahuridu and McKenna, 2000).

This article outlines the developments in whis-

tleblowing legislation and organisational whistle-

blowing policies. It examines the assumptions of

whistleblower protection with regard to moral

autonomy, in order to clarify the purpose of whis-

tleblower protection on people at work. The clari-

fication of the purpose of whistleblowing legislation

and related organisational policies is important be-

cause it will inform the appropriate means to achieve

the protection of whistleblowers. The two extreme

positions in the discourse on whistleblowing appear

to be that whistleblowing legislation and organisa-

tional policies either aim to enable individual

responsibility and moral autonomy at work, or

protect organisations by allowing them to control

employees and make them liable for ethics at work.

It is, however, possible for such policies to enable

both moral autonomy and responsibility of

employees and the protection of organisations in

varying degrees. We believe that insight into the

assumptions about autonomy and individuation at

work underlying the call for whistleblower protec-

tion is beneficial for successfully developing and

implementing whistleblower legislation and organi-

sational whistleblowing policies.

This article briefly outlines the developments in

the research, legislation and scope of whistleblowing

policies. It examines how moral agency and auton-

omy are conceptually linked, and develops the rea-

soning for the notion of moral responsibility in

organisations, by employing the notion of ‘ethical

distance’ (Bauman, 1993; Mellema, 2003). It then

develops the impact of whistleblowing policies on

ethical distance and moral autonomy. Finally, the

article develops the thesis that, while whistleblowing

policies can find their justification as an organisa-

tional mechanism enhancing the moral autonomy of

people in an organisational context, the effect of

implementing these policies is susceptible to turning

responsibility into liability for people at work.

108 Eva E. Tsahuridu and Wim Vandekerckhove

Whistleblowing and whistleblowing legislation

An act constitutes whistleblowing if it has the fol-

lowing characteristics: First of all, it must involve an

intentional disclosure of information to which the

whistleblower has privileged access. In general,

employees have such a privileged access. They know

what is going on at work, and specific jobs entail

handling specific information about what an orga-

nisation is doing. Not only permanent, core

employees but also temporary or contract staff and

some self-employed workers have privileged access

to information. Second, the disclosed information

must be about a perceived malpractice or wrong-

doing in the organisation, or under the responsibility

of the organisation. Third, the disclosure’s aim is to

rectify that malpractice or wrongdoing.

While some authors restrict the term whistle-

blowing to concerns that are raised outside the

organisation (Chiasson et al., 1995; Jubb, 1999),

many others assert that the term can be used for any

disclosure about wrongdoing in an organisation that

does not follow the normal hierarchical lines

(Callahan et al., 2002; Kaptein, 2002; Van-

dekerckhove and Commers, 2004; Vinten, 1994).

Miceli and Near (1992) have argued that empirically,

there is a conceptual distinction to be made between

internal and external disclosure because internal

disclosure commonly precedes external disclosure.

However, both internal and external disclosures of

organisational wrongdoing are consequences of a

concern being voiced by an insider aimed at recti-

fying the wrongdoing.

The assertion that whistleblowers are ‘rats’ or

‘sneaks’ has been refuted by empirical research on

the psychological and sociological dimensions of

whistleblowing. Research (see e.g. Chiu, 2003;

Dozier and Miceli, 1985; Miceli and Near, 1984,

1989, 1991) shows that employees who have blown

the whistle are loyal to the organisational goals and

would rather have the wrongdoing corrected by

raising the issue inside their organisation than cause a

scandal by blowing the whistle externally. More

important factors leading to acts of whistleblowing

were found to be the perceived organisational dis-

position towards people raising concerns internally,

and the perceived seriousness of the malpractice

(Callahan and Dworkin, 1994; Miceli and Near,

1985; Near and Micelli, 1987).

Miceli and Near (1992) argue that organisational

retaliation against (internal) whistleblowers encour-

ages further (external) whistleblowing, while Math-

ews (1987) and Keenan (1990) claim that having

internal whistleblowing procedures encourages

internal disclosures but not external whistleblowing.

Further, Sims and Keenan (1998) show that formal

organisational policies that support external whis-

tleblowing are not a significant predictor of its

occurrence. Informal elements, however, such as

supervisory support to do so, are more likely to lead

to external whistleblowing. Vandekerckhove (2006)

suggests that the research undertaken on whistle-

blowing has had an impact on policy making, and a

salient trend, since the mid 1990s, is that whistle-

blowing legislation makes protection of individuals

conditional on raising the concern inside the orga-

nisation prior to external whistleblowing. Hence,

the current usage of the term whistleblowing also

covers internal disclosures.

In addition to this disagreement, there is also the

unresolved issue of whether blowing the whistle is

an obligation or not. Jubb (1999), in order to dis-

tinguish between whistleblowing and informing,

asserts that a disclosure has to be non-obligatory for

it to qualify as an act of whistleblowing. Current

usage of the term whistleblowing, however, refers to

both obligatory and non-obligatory disclosure. This

apparent confusion stems from the assumptions

regarding the level of individual autonomy and

individuation, and the shifts that occur with regard

to these assumptions while implementing an or-

ganisational whistleblowing policy, which will be

developed in this article.