The misuse of the word ‘malicious’ in whistleblowing laws and policies can misguide the handling of ‘axe to grind’ reports.
When Dale Horne of Whistle Blowers Ethics Hotline asked me to share my thoughts on the subject of ‘malicious reporting’ by anonymous whistleblowers, I jumped at the chance.
As an ethics consultant, I am asked from time to time to review and update an organisation’s whistleblowing policies. More times than not I have the heart sinking experience of reading an existing statement to the effect that they ‘do not tolerate malicious reporting’.
Why ‘heart sinking’? Because I know that it’s often only when someone has an axe to grind that they are galvanised into reporting their knowledge of wrongdoing. And it’s usually information that you need and might not otherwise have received. The motivation behind the report pales into insignificance when it means that you uncover and root out unethical activity.
If you only want whistleblowing reports from individuals who occupy a moral high ground, say goodbye to valuable intelligence.
It happens repeatedly that anonymous reports containing valuable information are made via ethics hotlines, not because the whistleblower was thinking of their employer’s best interests in the first instance, but because they were overcome with negative emotion. Very often it is outrage, a sense of injustice that needs righting, perhaps a wish for revenge, and yes, ‘malicious intent’, that propels vital information into your hands as an employer.
Many whistleblowing reports are made by people who have known about a matter for some time and who may even have participated in the improper arrangement – until something changes.
Let’s take a bribery scheme that I had direct experience investigating as a young manager. It transpired that a factory supervisor only allocated premium pay overtime work to employees who favoured him with a bribe – in this case, one chicken per weekend of overtime. I don’t recall how long the scheme had been operating, but it had certainly been years. Everybody in the factory understood this to be ‘the way things are done here’ – except anyone in a position to take action against the extortive supervisor. The supervisor’s undoing? He increased the ‘fee’ by 100% – from one chicken to two. Outraged at what they now believed to be excessive greed, he was reported by the very employees who had until then been paying the one chicken bribe without a cheep.
Then there was the employee who was well-known amongst his colleagues for running an unauthorised and illegal business from the company premises. Let’s just say there were drinks all round to keep the colleagues quiet – until the moonlighter made a (successful) pass at a colleague’s girlfriend. You guessed it – the dumped boyfriend suddenly felt moved to dish the dirt on his teammate’s side-line business.
Your procurement officers giving inside information to favoured bidders? Chances are you will hear about it from an aggrieved and unsuccessful tender applicant. Your intermediaries paying bribes to secure you sales? Thank goodness for the competitor who rang your hotline.
If the first questions you ask yourself when you receive an anonymous whistleblowing report are ‘who might have sent this?’ and ‘what was their motivation?’, you would not be alone. The danger comes in allowing these questions to cloud your assessment of the potential merits of the report or to justify not undertaking an appropriate investigation.
Failure to investigate a report on the grounds that you suspected the whistleblower had an axe to grind, only to find out much later that it had substance, could leave you red-faced. Simply put, the continued harm to the business from the time of that disregarded report to the eventual uncovering of the matter could lie at your feet.
One thing we can all agree on is the fact that any whistleblowing report should be made ‘in good faith’. While definitions of what it means to act in good faith vary, there is agreement that it means to act honestly and sincerely, without misleading or withholding critical information. We require whistleblowing reports to be truthful, or truthful to the best knowledge of the whistleblower.
What we do not want is fictitious reporting, and it is true that fabricated reports are almost always made with malicious intent. It is this reality that has given rise to the mischaracterisation of all reports made with malice. The mistaken blanket approach to all reports with malicious intent is not only found in organisational whistleblowing policies, but in laws and regulations themselves.
Yes, even in laws, regulations and influential guidelines themselves. A superficial reading of the EU Whistleblowing Directive could have national laws throughout Europe perpetuating this error. But read its Clause 32 carefully and you will understand that its intention is this: Whistleblowers who deliberately and knowingly report wrong or misleading information do not have a right to protection, but a whistleblower who reports truthfully should be protected from retaliation for whistleblowing, regardless of their motive.
If you read the comprehensive standard on whistleblowing management systems, the ISO 37002-2021, you will find an extensive list of suggested questions to ask on receipt of a whistleblowing report and when deciding whether an investigation is warranted. Not one of these suggested questions relates to the motive of the whistleblower.
It should go without saying, except in your whistleblowing policy where it should be explicitly stated, that a whistleblower is not protected from facing the consequences of their own participation in reported unethical activity. This is necessary or else those facing the imminent detection of their wrongdoing by other means could absolve themselves by making a hasty whistleblowing report. Where regulators and other bodies offer rewards for whistleblowing, those who participated in the illegal scheme do not have a right to be rewarded for their information.
Your whistleblowing policy must also specify that the making of fictitious reports is a disciplinary offence. In South Africa, the Protected Disclosures Act provides for fines and imprisonment for the offence of fictitious reporting with malicious intent.
No one wants whistleblowing to be weaponised, and I am not suggesting that we encourage employees to use an ethics hotline as a tool of revenge. However, as long as our policies require that no malicious reports are made, we run the risk of misjudging how we should be responding to reports and fail to undertake warranted investigations.
The words may sound similar, ‘malicious’ and ‘fictitious’, but they are not to be confused. It is the fictitious reports that you do not want. Truthful reports propelled by malice can be an invaluable source of information.
Written for Whistle Blowers by Penny Milner-Smyth, Director, Ethicalways
A note from Dale Horne, Managing Director at Whistle Blowers
I hope that this opinion has given you valuable food for thought. In our next article we will discuss the challenging matter of deterring and responding to fictitious reporting.
As always, please do not hesitate to make contact with me and share your comments and queries arising from these client advisory communications. For more information about our multi-channel, multilingual ethics hotline service visit our website at www.whistleblowing.co.za. Based in South Africa, our service is utilised by clients around the globe, and we are specialists in the management of whistleblowing reports on behalf of clients operating throughout the African continent. Visit our Insights page for many more valuable articles on the management of whistleblowing.
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DALE HORNE | Managing Director | dale@whistleblowing.co.za
