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Whistleblowers and Regulation

whistleblower and inspection

Whistleblowing and Inspection

Whistleblowers and Regulation

For regulators the whistleblower is a valuable way of  uncovering the reality of what goes on inside an organisation. Whistleblowers revealing illegality, immorality, cruelty and abuse within their organisations have been responsible for bringing to justice and exposing the perpetrators of significant criminality and brutality. 18.3% of corporate fraud cases in large US companies between 1996 and 2004 were exposed by employees (Kaptein, 2011). In the UK, the abuse of people in care at Winterbourne View care home (Flynn, 2012) and hospital care tragedies at Mid-Staffordshire General Hospital (Kennedy, 2001, Francis, 2010) together with revelations on press intrusion (Leveson, 2012) highlighted the role of the whistleblower in exposing wrongdoing.

Whistleblowers are defined as persons who attempt to stop or change wrongdoing inside their own organisations:

  • By using an internal whistleblowing procedure
  • By going externally to an authority that has the power to stop the wrongdoing (Near and Miceli, 1985)
  • By approaching the press who have the power to name and shame.

Protecting the Whistleblower

Whistleblowers in most countries have some protected status from reprisal or dismissal. However, protection varies widely from one country to another and is significantly less certain for public and private sector subcontractors and consultants. (See Wolfe et al., 2014, Etienne, 2014). Often, there are prescribed regulators to whom whistleblowers must take their complaint. Whistleblowing is not the same as a complaint from a member of the public or an exposé by a pressure group, as with the recent campaign by People for the Ethical Treatment of Animals (2014) drawing attention to cruelty and abuse in Australian sheep shearing stations.

Whistleblowers offer a unique insight into the organisation with which they are connected but very often regulators and inspectors do not respond positively – in fact, there are more reports of them ignoring whistleblowers than acting on their information (James, 2011, Annakin, 2011). Most whistleblowers have first raised their complaint through an internal process; many will only raise it twice before stopping (Vandekerckhove et al., 2013). If ignored, most whistleblowers will give up. In fact, only 50% of those who want to change wrongdoing in their workplace actually complain. Most are deterred, not by the threat of reprisal, but by a culture of ‘deafness’ (Jones and Kelly, 2014) – they are simply ignored. Where there is reprisal, it is not in the form of instant dismissal but as ‘a series of actions designed to isolate, humiliate or harass whistleblowers without leaving a trail of evidence’ (Annakin, 2011: p. 281).

What Inspection can do to Help

The following points may help:

  • When contacted by a whistleblower, an authority should always investigate
  • Make sure you are up to date with the region’s whistleblowing legislation (in some countries, there is state-to-state variation)
  • Make sure that workers in the organisation have the authority’s contact information and feel confident they know they are contacting the prescribed organisation for whistleblowing complaints in that sector. If the whistleblower goes to the wrong regulator, they may not have protected status
  • Make yourself available to staff as you walk around
  • Find out if there is a specialised agency for whistleblower reprisal and protection (in Canada there is)
  • It should be remembered that protected status may also give anonymity
  • If required, the whistleblower should be met outside the place of work.

Legislation gives protection against reprisal. In some countries, this is defined widely to include social reprisals, lack of training, dead-end tasks. However, the outcome for the whistleblower is consistently poor, particularly in relation to obtaining future employment.

Notification by a whistleblower should trigger alarm; it implies that the management and culture is unable to manage change and risk in work practices. Be aware of good practice in internal procedures for whistleblowing (Public Concern at Work, 2013, Roberts et al., 2011, Miceli et al., 2009).

Improving Whistleblowing Practice

Recommendations to regulators to improve whistleblowing practice include the following:

  • Encourage, urge or require – with threat of withholding licence if necessary – organisations to have internal whistleblowing procedures
  • Regulators should have their own clear procedures for responding to whistleblowers who approach them
  • Have an annual reporting mechanism of whistleblower contacts and outcomes (Public Concern at Work, 2013).

Jordan (2018) points out that many US regulators can provide incentives and rewards to whistleblowers in order to motivate whistleblowers. Many realise that blowing the whistle means going against your own self interest to encourage a successful, and therefore beneficial, enterprise. Take up of incentives and rewards has been patchy with some regulators apprehensive of using incentives.

Extract from: Brady, J. & Brady, A. 2016. Regulation: Audit, Inspection, Standards and Risk – A Handbook for Street-level Regulators, Second Edition, Cappoquin, Ireland, Precepts Books.

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References

Annakin, L. 2011. In the Public Interest or out of Desperation? The Experience of Australian Whistleblowers Reporting to Accountability Agencies. A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy, University of Sydney.

Etienne, J. 2014. Different Ways of Blowing the Whistle: Explaining Variations in Decentralized Enforcement in the UK and France. Regulation & Governance, Early View Online.

Flynn, M. 2012. Winterbourne View Hospital: a Serious Case Review, Gloucester, South Gloucestershire Council,

Francis, R. 2010. Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005 – March 2009 Volume I, London, House of Commons,

James, C. 2011. Whistleblowing, Risk and Regulation. In: Lewis, D. & Vandekerckhove, W. (eds.) Whistleblowing and Democratic Values. International Whistleblowing Research Network.

Jones, A. & Kelly, D. 2014. Whistle-Blowing and Workplace Culture in Older Peoples’ Care: Qualitative Insights from the Healthcare and Social Care Workforce. Sociology of Health & Illness, 36, 986-1002.

Jordan, A. 2018. Whistleblowing Is a Key Regulatory Tool. Penn Regulatory Review [Online]. Available from: https://www.theregreview.org/2018/02/05/jordan-whistleblowing-key-regulatory-tool/ 2018].

Kaptein, M. 2011. From Inaction to External Whistleblowing: The Influence of the Ethical Culture of Organizations on Employee Responses to Observed Wrongdoing. Journal of Business Ethics, 98, 513-530.

Kennedy, I. 2001. Learning From Bristol: The Report of the Public Inquiry into Children’s Heart Surgery at the Bristol Royal Infirmary 1984–1995, London, HMSO, CM 5207(I)

Lord Justice Leveson 2012. The Leveson Inquiry: An Inquiry into the Culture, Practices and Ethics of the Press, London, TSO,

Near, J. P. & Miceli, M. P. 1985. Organizational Dissidence: The Case of Whistle-Blowing. Journal of Business Ethics, 4, 1-16.

PETA. 2014. International Exposé: Sheep Killed, Punched, Stomped on, and Cut for Wool. Available: https://investigations.peta.org/australia-us-wool/ [Accessed 24/09/2014].

Public Concern at Work 2013. The Whistleblowing Commission: Report on the Effectiveness of the Existing Arrangments For Workplace Whistleblowing in the UK, London, PCaW,

Roberts, P., Brown, A. J. & Olsen, J. 2011. Whistling While They Work: A Good Practice Guide for Managing Internal Reporting of Wrongdoing in Public Sector Organisations, ANU E Press.

Vandekerckhove, W., James, C. & West, F. 2013. Whistleblowing: The Inside Story—A Study of the Experiences of 1,000 Whistleblowers, London, UK, Public Concern at Work,

Wolfe, S., Worth, M., Dreyfus, S. & Brown, A. 2014. Whistleblower Protection Rules in G20 Countries: The Next Action Plan, Blueprint for Free Speech, Australia.,