As it stands, PIDA is convoluted law. A person contemplating making a protected disclosure under it is well-advised to take legal advice before, and not after, raising the concern. The Health Committee of the House of Commons acknowledged some of the Act’s limitations. While PIDA is supposed to provide protection against employee detriment, and its effect to be deterrent rather than restorative, its complexity is such that success in a case brought under PIDA can by no means be guaranteed (Pattenden 2003; HOC 2015).
Over and above the provisions and limits of this particular statute, there are contrasting opinions on what whistleblowing legislation and duties exist for. One perspective is that of the employee acting in line with their individual conscience to counter wrongdoing (like, say, the heroic slayer of a mythical dragon). Less seductive, is the view that whistleblowing statute serves as a management tool to control the workforce (Tsahuridu and Vandekerckhove 2008). The first view regards whistleblower protection as promoting individual responsibility and autonomy in the workplace. The second understands whistleblower protection to be de facto protective cover for the organization, as it offloads responsibility for holding the moral compass in the workplace from employer onto employee.
In evidence to the Health Committee of the UK House of Commons (HOC 2015), the chief executive of the UK charity PCaW said that PIDA acted more as a deterrent than a remedy: if an employee has to have recourse to PIDA’s provisions, then his or her employment prospects are already substantially impaired. Organizational whistleblowing policies may use PIDA as a legal firewall – do this, at the right time, in the right way, in the right sequence, or face the consequences, if you fancy your chances taking us on.
PARADOXES IN WHISTLEBLOWING POLICY AND PROCEDURES
To be used and useful, people need to know about, understand and have confidence in an organization’s whistleblowing policy, and in those who manage it. It requires a lot of the employee, in fulfilling their side of the employment contract, when they find they have to negotiate, with all the care of someone ploughing a field of activated landmines, the tripwires of their employer’s whistleblowing policy and procedures. When organizations have a whistleblowing policy in place solely to meet compliance, regulatory or legal requirements – as a procedural fig leaf we might say – the tacit suppression, discouragement or punishment of dissent is experienced as the organizational actualité, whatever the policy says.
Vandekerckhove (2011) identified five paradoxes in managing whistleblowing. The first is the truism that all the grand talk about whistleblowing protection doesn’t always get – that whistleblowing policies work best in organizations that don’t really need them; that is to say, in places where early corrective action is taken, where and when needed. Kaptein (2008) put forward seven features of an ethical organizational culture, which were:
1.clarity (of normative expectations laid on employees)
2.congruency (with these expectations) by managers
3.feasibility (how far the organization creates the conditions that enable employees to meet the expectations)
4.supportability (how far the organization creates support mechanisms to meet expectations)
5.transparency (employees can only be held accountable if they knew the consequences of their actions)
6.discussability (the opportunity employees have to raise concerns and issues)
7.sanctionability (enforcement of sanctions to wrongdoing, rather than turning a blind eye).
Organizations delivering on these ethical dimensions are not going to need to rely on the paraphernalia of policy, procedures, helplines for whistleblowers and all the rest – but they will have all of that because they manifest ethical virtues that deal with problems before they threaten the organization, and the people it serves.
Vandekerckhove’s second paradox concerns anonymous reporting channels – something that whistleblowers often say they want but which don’t always help. Hunton and Rose (2011), for instance, found that anonymous reports were seen as less credible by managers receiving them, and fewer resources were allocated to investigating and rectifying reported wrongdoing.
The third paradox lies in rectifying the problem the whistleblower raises, which may itself create other problems for the organization’s managers. The stakes are higher if the whistleblowing matter threatens the organization; if it does, whistleblowing is less likely to be effective (Near and Miceli 1995). The fourth paradox is the loose procedural talk about the right to blow the whistle, whereas it is, in reality, an implied or disguised duty, as the House of Commons committee referred to earlier made clear. When an issue blows up, those who knew but did not report it are judged, blamed and held to account, no matter what fear of reprisal they may have had about raising the concern in the first place. The right becomes a liability. The fifth paradox is the response to whistleblowing and to the employee raising concerns: this itself can lead to detriment, reprisal and wrongdoing against the employee. These paradoxes are in perfect symmetry: the employee is damned if they do, and damned if they don’t.
WHAT HAPPENS WHEN PEOPLE WHISTLEBLOW?
The outlook isn’t always a rosy one for the whistleblower. There is no certainty that anything will change after a whistleblower has put themselves through the procedural mill to raise their concerns. Momentary acclaim for being the heroic martyr who took on the iron cage of a dehumanized bureaucracy won’t pay bills, repair relationships or develop new careers if the whistleblower finds themselves dealing with career ruin, bankruptcy, depression or alcoholism (Alford 2001; Rothschild and Miethe 1999).
The UK House of Commons Committee of Public Accounts, having taken evidence from four government departments (Education; Health; Revenue and Customs, Ministry of Defence), observed in its 2014 report on whistleblowing that ‘…whistleblowers who have come forward have had to show remarkable bravery’ (HOC 2014, p.3). It commented that the treatment of some whistleblowers had been ‘shocking’, with whistleblowers sometimes left unprotected from victimization. The Committee noted the ‘startling disconnect between the generally good quality of whistleblowing policies in theory and how arrangements actually work in practice’ (HOC 2014, p.6).
When taking evidence for this report on whistleblowing, the chair of the UK House of Commons Public Accounts Committee (PAC) remarked:
I will just say that we tried to get a number of whistleblowers whose evidence has been proven credible to come and talk to us about their experience… We had somebody from HMRC [Her Majesty’s Revenue and Customs] who would not come, somebody from the MOD [Ministry of Defence] who would not come, somebody from local government who would not come, and also somebody from the police. That shows there is still a culture of complete fear out there…which demonstrates the difficulties that we are facing. (PAC 2014)
Giving evidence before the PAC, Kay Sheldon, who had been a board member of the Care Quality Commission (CQC), the health and care regulator in England, described some her experiences of whistleblowing to the CQC:
…I started to raise some quite serious concerns about CQC – about the leadership, the management and the culture. I felt that the organisation was at risk of not fulfilling