1 October 2015, by Beatrice Edwards, Government Accountability Project.

To promote accountability among United Nations member states, the UNCAC endorses anti-retaliation measures for whistleblowers. Most explicitly, Article 33 sets out the parameters of protection for reporting persons and encourages their consideration.

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention. (Article 33 UNCAC)

Since the adoption of the Convention in 2003, international organisations themselves have adopted their own internal anti-retaliation policies. The UN Secretariat adopted a policy in 2005, and the Funds, Programs and Specialized Agencies emulated that example over the course of the following three years. Throughout the UN system, management has made efforts to establish policies that conform to evolving best-practice standards, many of which were not yet articulated when the UNCAC was adopted. Because global experience with whistleblower protections is now diverse and extensive, the signatories to the UNCAC may also consider adopting legislation that conforms to best-practice standards.

Protection must be bullet proof

Like witness protection measures, policies and legislation adopted to protect whistleblowers from reprisal must be “bullet proof.” If gaps in coverage are allowed, whistleblowers come forward expecting protection only to find themselves exposed to retaliation.

In response to this increasing need, civil society organisations (CSOs) around the world are codifying best-practice whistleblower protection standards based on experience. Standards now set out by CSOs, such as Transparency International (TI) and the Government Accountability Project (GAP), identify the need to specify the scope of protected disclosures, shifting burdens of proof, access to independent adjudication, and compensation for vindicated whistleblowers.

The adoption of standards for whistleblower protection measures would ensure that, when implemented, new legislation does not inadvertently expose those who report misconduct, fraud, or illegality to retaliation. For example, the scope of protection must be broad and inclusive, both in defining who is a whistleblower and what constitutes a protected disclosure.

The assignment of responsibility for proving that retaliation has occurred is also a crucial feature of this legislation; if the burden of proof falls exclusively on the victims of retaliation, for example, experience and precedent show that they will rarely prevail. Retaliation can be subtle; it also can be disguised easily as legitimate discipline. Whistleblowers may find themselves dismissed or demoted for minor transgressions, which under ordinary circumstances would be barely noticed and would warrant little reaction. Therefore, best-practice standards set out by CSOs specify a shifting burden of proof: once the whistleblower has established by a preponderance of evidence that retaliation may have occurred, the burden of proof shifts to the employer to show that the same adverse action would have been taken, absent the whistleblower’s disclosure.

The ability to bring a retaliation complaint to an objective forum is also crucial. In many cases, retaliation complaints must still be decided in administrative hearings, internal to the institution where the whistleblower is employed. In such settings, the influence of the retaliator may be strong and yet virtually invisible to the observer. For example, the selection of judges may not be impartial, political pressure may be exercised, or the regulations governing internal adjudication may be unfavourable to a whistleblower. Further, an internal adjudication body may set the rules for the production of evidence or confidentiality that favour the employer. Proceedings may be arcane and protracted so that a whistleblower cannot afford to pursue a complaint. The ways in which an adjudication body may repress retaliation claims are innumerable, and therefore whistleblowers must have access to an impartial forum that will hear their appeals for protection or relief.

Compensation that eliminates the effects of retaliation must also be legislated. In practice, whistleblowers often lose not only their jobs, but also their careers and their pensions. They become not only unemployed, but unemployable through informal practices impossible to detect or prevent, such as professional blacklisting. If adequate compensation for such damages is not incorporated into the law, whistleblowers defending themselves from retaliation may lose – even when they win. After paying legal expenses and taxes, a notional financial settlement may leave little or nothing to compensate for lost wages and a ruined career. If the draconian financial consequences of being an identified whistleblower are not addressed, they are a strong disincentive to other potential reporting persons.

UN standards put into practice

The UN system responded to widening international support for whistleblower protection when the Chief Executive Board (CEB) endorsed the Institutional Integrity Initiative, which seeks to align the accountability measures internal to the UN system with the aspirations of the UNCAC.

The United Nations Office on Drugs and Crime is spearheading the Initiative, even as the UNCAC Review Mechanism promotes rigorous implementation of the Convention. To launch the alignment process, the CEB considered a self-assessment checklist that references the anti-corruption principles with most relevance to international organisations.

In the United States, whistleblower protections were first adopted in 1989, eroded over the course of the following years, and then reinforced by the US Congress in 2012. In 2014 the Congress approved legislation obliging the United Nations system itself to adopt best-practice standards – and implement them. The legislation made the full US contribution to each UN agency, fund and program contingent upon the implementation of best-practice standards for whistleblower protections. Pressure has built on management throughout the UN system to implement these standards.

As the States parties to the UNCAC consider legislation to protect people who report illegality, fraud and danger to the public health and safety, they might also study the best-practice standards set out by civil society organisations such as GAP and TI, as well as guiding principles and model legislation produced by the Organisation for Economic Co-operation and Development (OECD) and the Organization of American States (OAS).

Scrupulous implementation of the principles identified by the Institutional Integrity Initiative will provide incentives to member states to make rapid progress. Since the adoption of the UNCAC 12 years ago, civil society has accumulated a wealth of experience in protecting whistleblowers, and the UN system itself is incorporating more inclusive protections. The signatories of the UNCAC are well-positioned to benefit from this evolving knowledge.

About Beatrice Edwards

Beatrice Edwards is the International Program Director at the Government Accountability Project.