How do you say no and keep your job?

Only one in two organisation members are confident that their own organisation is serious about protecting people who speak up.

Is there a right way to decline when asked to participate in unethical conduct at work?

Raising concerns about wrongdoing or unethical practices within an organisation is a responsible thing to do, but it may result in employees being sidelined by bosses and colleagues – or marched out the door.

Results from the first stage of the World Online Whistleblowing Survey, conducted by Brisbane’s Griffith University and the University of Melbourne, reject as a myth a supposed culture of “anti-dobbing” in Australia, with 81 per cent of adult respondents believing whistleblowers should be supported rather than punished for revealing information about serious wrongdoing.

Yet only one in two organisation members are confident that their own organisation is serious about protecting people who speak up.

So how can whistleblowers raise concerns about wrongdoing in a less risky way?

And what are the benefits to organisations of encouraging a culture in which whistleblowers can lift the lid on poor practices?

INTHEBLACK asked three experts.

Billie Garde

Billie Garde

Billie Garde 

Trial lawyer in employment law
Clifford & Garde, LLP

Billie Garde knows a thing or two about taking an ethical stance at work. In 1980, as a Census Bureau employee in Oklahoma, she was pressured by a supervisor to falsify the test scores of applicants he wanted to hire.

She was also asked to recruit sex partners for visiting political officials.

When the mother of two refused, she was fired from her job and the repercussions included being subjected to harassment and vandalism and temporarily losing custody of her children.

The case prompted Garde to attend law school and she is now a respected lawyer based in Washington, DC, who represents whistleblowers.

While there has been a rise in whistleblowing on the back of legal reforms, increased awareness of people’s power, high-profile cases and greater media coverage, Garde nevertheless warns potential whistleblowers they can still face a backlash.

“Human behaviour is hard to change, and there is a natural instinct to punish or retaliate against people whose actions are perceived to ‘threaten’ the organisation or a particular plan,” she says.

Garde says daily leadership commitment is required to create a culture in which employees are truly free to speak up about potential wrongdoing.

For employees who are asked to behave unethically, she has blunt advice: “Do not engage in illegal, unethical or improper activity that could endanger you, the public or the customer of the company’s product.”

Generally speaking, says Garde, a supervisor will withdraw a request for unethical behaviour if an employee questions it. If that doesn’t work, use internal mechanisms such as ethics hotlines to report the case.

“If that is also unsuccessful, employees should consider anonymously reporting the issue externally to government regulators,” she advises.

Such reports should be in writing, with evidence if possible, and with non-emotional explanations of why the request was unethical and the consequences to the company if the action was carried out.

“At the end of the day, if none of these approaches work, seek legal advice and prepare to be fired or find a new job,” Garde says.

“It is not worth compromising your integrity and reputation to keep a job based on an expectation that you participate in wrongdoing.”

Describing her personal experience as a “life-changing event”, Garde says in hindsight she was naïve and should have approached her situation differently – raising the concerns anonymously instead of openly, and waiting until her family was out of harm’s way before exposing the wrongdoing.

“I also would have gone to the press earlier and let them do their job by taking the lead with tough questions that would have shown the light on the wrongdoing before it got so bad.”

Most of all, Garde advises would-be whistleblowers to get advice from specialists – and follow it.

“Too many employees seem determined to be martyrs for their cause, and end up with no job, a risky lawsuit and no one that cares about the concern.”

Billie Garde is an American trial lawyer specialising in employment law who represents whistleblowers. She formerly worked for the Government Accountability Project and Trial Lawyers for Public Justice in the US.

Cathy James

Cathy James

Cathy James

Whistleblowing adviser and advocate
Public Concern At Work

Encouraging reasoned whistleblowing is in the self-interest of boards and bosses, according to Cathy James of Public Concern At Work.

The alternative is creating a culture in which employees either think it is futile or personally risky to raise ethical concerns.

“From an organisational perspective, both [scenarios] are very dangerous because, for management, a culture of silence means you don’t get to know about your problems,” James says.

In an environment where health sector scandals and the News of the World phone-hacking debacle have received considerable coverage, Public Concern At Work’s whistleblowing advice line has been running hot as people seek advice on how to handle workplace wrongdoing.

James says there are clear initial questions for would-be whistleblowers to consider: what have they seen; how did they find out about it; how does it affect the organisation; and what is their personal position?

They must also assess whether they sufficiently trust management to reveal their concerns.

One of the keys to likely success for whistleblowers, according to James, is for complainants to frame their concerns in a way that puts the interests of the group or organisation first, rather than focusing on personal grievances.

They should highlight risks to the board or business “rather than being accusatory or finger-pointing”.

“That can make all the difference between being ignored and being listened to,” she asserts.

Whistleblowers should also clearly express the nature of the problem, understand their legal rights and have realistic expectations about the likely outcome of their complaint.

Avoiding wild allegations – and terms such as “negligent”, “criminal” or “corrupt” – until all the details of a case become clear is also crucial.

“People can use such language when they are angry and frustrated, but it’s far better to use language that describes what you are seeing [in the organisation],” James says.

Last year, Public Concern At Work and the University of Greenwich released a report, Whistleblowing: The Inside Story, which examined the cases of 1000 callers to Public Concern At Work’s advice line.

It found that most individuals will raise a concern only once or twice before giving up.

“So as an organisation you have one, or perhaps two, chances to get it right, listen to the whistleblower and treat them properly in order to deal with these problems,” James says.

The findings also indicated that in most cases nothing was done by management to address allegations, and that disciplinary action against the whistleblower, such as suspension, demotion or dismissal, was common.
James urges senior management to create a workplace culture in which people are encouraged to speak up.

There should also be regular and thorough reviews of the organisation’s whistleblowing culture to ensure problems do not arise. Simply having a whistleblowing policy is not enough.

The beauty of a strong ethos around this, James adds, is that it not only detects wrongdoing but also deters malpractice, “because if people know that it’s easy for staff to question the way they’re behaving, they behave”.

In some circumstances, including if there is a culture of corruption at the highest levels of the organisation, James says it may be inevitable that a staff member will quit rather than stay and fight.

“But I’d really encourage someone who is leaving to ensure they tell the board and/or their regulatory body, and make sure as they exit that there is accountability so the organisation can’t carry on without some repercussions.”

Cathy James is the chief executive of Public Concern At Work, a charity in the United Kingdom which provides advice for people who have witnessed wrongdoing, malpractice or risk at work.

AJ Brown

AJ Brown

Public policy professor
Griffith University

Edward Snowden fled his country after blowing the whistle on invasive American surveillance programs.

Former US Army soldier Chelsea Manning is serving 35 years in jail for leaking hundreds of thousands of classified government documents.

However, researcher AJ Brown says most whistleblowers are not dealing with such high-stakes wrongdoing and, with the right organisational strategies, many can keep their jobs and lead a normal life after revealing ethical concerns or wrongdoing in their worAkplace.

“A lot of the more celebrated cases tend to be horror stories,” he says. “The ones which are being well handled you never hear about.”

While it is becoming more and more acceptable to dob in a dodgy boss or dangerous business practice, Brown says whistleblowers still face the prospect of dismissal or sidelining if they expose systemic failures to which management does not want to admit.

“That’s where there may be no easy way out … There is always the risk of powerful actors in the organisation turning on the whistleblower,” he says.

People’s conscience – can they sleep soundly at night – will usually dictate the way they respond to a breach of ethics in an organisation, says Brown.

If they decide to speak out, they should consider a number of salient questions: How can they raise the issue in a way which will stand the best chance of it being addressed?

Who within the organisation is in a position to reliably review and correct any problem? Should a regulator be involved? And how can they do all this in a manner that presents the lowest personal risk?

In many respects, Brown says the actions of whistleblowers will be governed by the policies of their organisation.

If good systems and protocols are in place to aid the disclosure of sensitive information, employees will typically trust and use those measures.

If not, they may be advised to go to an external source such as a regulator.

It is in the self-interest of organisations, Brown says, to create a culture in which whistleblowers feel comfortable expressing grievances or concerns.

He says legal reforms mean rules have become far more explicit for organisations in terms of their need to respond to allegations of wrongdoing.

“Things can’t just be swept under the carpet,” he says.

But it remains a complex area, one in which employees are vulnerable.

“There’s still a huge power imbalance between employers and employees in these situations,” Brown says.

“It’s usually much easier for the employers to amass the resources to defend some kind of allegation than it is for whistleblowers to mount their case.”

According to Brown, the best organisations understand that their own governance professionals such as auditors, ethics officers, compliance managers and human resources heads are the “crucial brokers” who are often best placed to help navigate a response to whistleblowing.

Management needs to give them capacity to manage the risks and issues revealed by whistleblowing “without the messenger having to be shot”.

AJ Brown is a professor of public policy and law at Griffith University. He is the leader of one of the world’s largest studies of whistleblowing, and lead editor of the International Handbook on Whistleblowing Research (Edward Elgar, 2014).

Key takeaways

  • Whistleblowing can be an invaluable way for senior management to be alerted to internal problems.
  • Complainants should frame concerns to highlight risks to the organisation rather than focusing on personal grievances.
  • When reporting wrongdoing, do it in writing and provide evidence if possible.
  • Middle managers require training so they can properly deal with complaints about workplace wrongdoing.

This article is from the October 2014 issue of INTHEBLACK.

 


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