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Whistleblower protection: encouraging reporting - …

Whistleblower protection : encouraging reporting July 2012 The CleanGovBiz Initiative supports governments, business and civil society in their efforts to build integrity and fight corruption. The initiative draws together existing instruments, reinforces their implementation, improves co-ordination among relevant players and monitors progress towards integrity. The CleanGovBiz toolkit provides guidance on how corruption can best be tackled in different policy areas and offers access to relevant standards and instruments. This work is published on the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the Organisation or of the governments of its member countries. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

Whistleblower protection: encouraging reporting July 2012 The CleanGovBiz Initiative supports governments, business and civil society in their efforts to build integrity

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1 Whistleblower protection : encouraging reporting July 2012 The CleanGovBiz Initiative supports governments, business and civil society in their efforts to build integrity and fight corruption. The initiative draws together existing instruments, reinforces their implementation, improves co-ordination among relevant players and monitors progress towards integrity. The CleanGovBiz toolkit provides guidance on how corruption can best be tackled in different policy areas and offers access to relevant standards and instruments. This work is published on the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the Organisation or of the governments of its member countries. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

2 OECD 2012 OECD freely authorises the use of this material for non-commercial purposes. Requests for commercial use or translation of this material should be submitted to 3 Whistleblower protection Whistleblower protection : encouraging reporting The risk of corruption is significantly heightened in environments where the reporting of wrongdoing is not supported or protected. Public and private sector employees have access to up-to-date information concerning their workplaces practices, and are usually the first to recognise However, those who report wrongdoings may be subject to retaliation, such as intimidation, harassment, dismissal or violence by their fellow colleagues or superiors. In many countries, whistleblowing is even associated with treachery or Whistleblower protection is therefore essential to encourage the reporting of misconduct, fraud and corruption.

3 Providing effective protection for whistleblowers supports an open organisational culture where employees are not only aware of how to report but also have confidence in the reporting procedures. It also helps businesses prevent and detect bribery in commercial transactions. The protection of both public and private sector whistleblowers from retaliation for reporting in good faith suspected acts of corruption and other wrongdoing is therefore integral to efforts to combat corruption, safeguard integrity, enhance accountability, and support a clean business environment. Whistleblower protection has been recognised by all major international instruments concerning corruption. The 1998 OECD Recommendation on Improving Ethical Conduct in the Public Service including the Principles for Managing Ethics in the Public Service and the 2003 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service were among the 1 United Nations Office on Drugs and Crime, UN Anti-Corruption Toolkit, 3rd Edition, Vienna, 2004, p.

4 67. 2 See David Banisar, Whistleblowing: International Standards and Developments in Sandoval, I. (editor), Corruption and Transparency: Debating the Frontiers between State, Market and Society, World Bank-Institute for Social Research, UNAM, Washington, 2011, (hereinafter Banisar) and Transparency International, Alternative to Silence: Whistleblower protection in 10 European Countries (2009). 4 Whistleblower protection first. The latter includes guidelines to advise countries to *p+rovide clear rules and procedures for whistle-blowing, and take steps to ensure that those who report violations in compliance with stated rules are protected against reprisal, and that the complaint mechanisms themselves are not abused. The 2009 Recommendation of the OECD Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions also provides for the protection of whistleblowers in the public and private sectors.

5 In addition, Whistleblower protection requirements have been introduced in the United Nations Convention against Corruption,3 the Council of Europe Civil and Criminal Law Conventions on Corruption,4 the Inter-American Convention against Corruption,5 and the African Union Convention on Preventing and Combating In 2010, the importance of Whistleblower protection was reaffirmed at the global level when the G20 Anti-Corruption Working Group recommended G20 leaders to support the Guiding Principles for Whistleblower protection Legislation, prepared by the OECD, as a reference for enacting and reviewing, as necessary, Whistleblower protection rules by the end of 2012. The OECD also developed a Compendium of Best Practices to provide available options in various contexts for decision-makers designing and implementing Whistleblower protection rules in line with the G20 Guiding Principles for Whistleblower protection Legislation.

6 3 UNCAC Articles 8, 13 and 33. 4 Council of Europe Civil Law Convention on Corruption, Article 9; Council of Europe Criminal Law Convention on Corruption, Article 22. 5 Inter-American Convention against Corruption, Article III(8). 6 African Union Convention on Combating Corruption, Article 5(6). 5 Whistleblower protection Priority checklist 1. Is there comprehensive and clear legislation in place to protect from retaliation, discriminatory or disciplinary action, employees who disclose in good faith and on reasonable grounds, suspected acts of wrongdoing or corruption to competent authorities? 2. Are there effective institutional frameworks and clear procedures and channels in place for facilitating the reporting of wrongdoing and corruption?

7 3. Are protected disclosures and persons afforded protection clearly defined? 4. Are retaliatory actions clearly defined and the protection afforded robust and comprehensive? 5. Are remedies and sanctions for retaliation clearly outlined? 6. Is awareness-raising regularly undertaken to encourage the reporting of wrongdoing and corruption and to disseminate existing information on the protection of whistleblowers? 7. Is the effectiveness in practice of the Whistleblower protection framework periodically evaluated and reviewed? 6 Whistleblower protection Implementation guidance 1. Is there comprehensive and clear legislation in place to protect from retaliation, discriminatory or disciplinary action, employees who disclose in good faith and on reasonable grounds, suspected acts of wrongdoing or corruption to competent authorities?

8 Translating Whistleblower protection into legislation legitimises and structures the mechanisms under which whistleblowers can disclose wrongdoings in the public and private sectors and protects them against reprisals. If adequately implemented, legislation protecting whistleblowers can become one of the most effective tools to support anti-corruption initiatives, and detect and combat corrupt acts, fraud and mismanagement. The absence of appropriate legislation impedes the fight against corruption and exposes whistleblowers to risks of Recognising this, legal protection for whistleblowers grew from 44% to 66% in OECD countries between 2000 and 2009 (see Figure 1).8 Figure 1. Countries that offer protection for whistleblowers (2000 and 2009) The enactment of a comprehensive, dedicated law as the basis for providing Whistleblower protection is generally considered the most effective legislative means of providing such protection .

9 Comprehensive and stand-alone legislation 7 David Banisar, Whistleblowing: International Standards and Developments in Sandoval, I. (editor), Corruption and Transparency: Debating the Frontiers between State, Market and Society, World Bank-Institute for Social Research, UNAM, Washington, 2011, (hereinafter Banisar). 8 OECD, Government at a Glance (2009), p. 108-109. 7 Whistleblower protection may give the law heightened visibility, thereby making its promotion easier for governments and This approach also allows for the same rules and procedures to apply to public and private sector employees, rather than a more piecemeal approach through several different laws, which often only apply to certain employees and to the disclosure of certain types of The enactment of stand-alone legislation could also contribute to ensuring legal certainty and protection of whistleblowers may also be provided for by specific provisions in different laws, such as in the criminal code, labour laws or laws regulating public servants.

10 A criminal code may impose a fine and/or imprisonment for retaliation against a Whistleblower that provides information about the commission or possible commission of an offence to law enforcement authorities. A labour law may protect workers against retaliation by employers when they report work-related offences and in some countries laws regulating public servants contain provisions aimed at protecting public servants who report wrongdoing in or relating to the public sector from reprisals. Whistleblower protection may also be provided for by specific laws, such as anti-corruption laws, competition laws, accounting laws, environmental protection laws, and company and securities laws. 9 See: D.


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