Whistleblowing

Whistleblower is not a snitch

Transparency International defines whistleblowing as the disclosure or reporting of wrongdoing, which includes corruption, criminal offences, breaches of legal obligation, miscarriages of justice, specific dangers to public health, safety or environment, abuse of authority, unauthorised use of public funds or property, gross waste or mismanagement, conflict of interests, and acts to cover up any of the aforementioned.[1]

Perception and Language

The term „whistleblower “ is not easily translated into local languages in the V4 region. Descriptive terms with a rather negative connotation (snitch, informer) (udavač, bonzák, donášač) are still in use in the society. These terms misrepresent the act of speaking up about wrongdoing in public interest. Neutral terms such as (oznamovateľ (sk-cz), sygnalista (pl)), have been coined in this context, and are actively used by NGOs, the media, and other stakeholders who aim depict whistleblowers in a favourable way.

Speaking up?

About 1 in 3 Europeans say that the main reason for not reporting corruption is the fear of consequences.[2] As a result of remaining silent, corrupt practices and wrongdoing go on uncovered in our societies.

In V4 countries, it is generally less socially acceptable to report a case of corruption than in other EU countries. On average, about 45% of European agree it is socially acceptable to report, whereas this opinion was express only by 13% of Hungarians (lowest from the V4) and 36% Poles (highest in the V4).[3]

Similarly, citizens of the V4 countries do not feel personally obliged to report cases of corruption – on average 19% of citizens across the EU would not feel obliged to report, whereas such a perception is much more wide-spread in the Central European countries. (PL – 21%, CZ – 26%, SK – 40%, HU – 48%).[4]

For whistle-blowers consequences of reporting wrongdoings too often come in form of retaliatory actions from employers and negative prejudices from the public, disregarding and misunderstanding the importance of their act for the public interest. An adequate and effective system of protection should mitigate these negative effects and allow persons to speak up when necessary without fear of retribution.

Why protect whistle-blowers? And how?

Legal landscape

The UN Convention Against Corruption, which all of the V4 countries have ratified, requires the states to consider adopting whistleblower protections. Best legislative practices have been stipulated by Council of Europe, OECD, Transparency International and others.

However, the whistleblowers are still not effectively protected in V4 countries. Only Hungary (since 2010) and Slovakia (since 2015) have a stand-alone whistleblower law protecting employees in public and private sector, covering a range of wrongdoing beyond corruption. The implementation of the laws in both countries has been flawed.

On the other hand, Poland and Czech Republic are currently in the process of considering such legal frameworks on the national level. In the absence of a dedicated WB law, legal provisions applicable to whistle-blowers may be scattered around other sectors of law (labour, criminal, civil etc.), and may apply to only certain employees or certain types of wrongdoing.[5]

 

Blowing the whistle

Employees are often the first ones to notice if any wrongdoing is taking place at work. The nature of one’s work may involve direct access to sensitive information, allowing them to spot irregularities or misconduct.

Detecting frauds via tip (in about 50% coming from an employee) is the most effective way of detecting fraud in a workplace; it is three times more effective than internal audit.[6]

Retaliation

Whistle-blowers run significant personal risks when disclosing wrongdoing. An adequate legal protection and an available support system may encourage them to speak up. Whistleblowers should be protected from a wide range of adverse actions from employer: dismissal, demotion, reassignment, reducing pay or hours, disciplinary sanctions, or even defamation lawsuits etc. Blowing the whistle at work may bear risks for future professional life or personal well-being.

Where to report

Depending on the availability of channels for safe reporting within organisations, an employee may turn to the employer to raise the concern internally, or to a regulator. In the absence of such channels, whistleblowers tend to turn directly to the media and NGOs to publicize their concerns, known as external whistleblowing . The steps in making a disclosure and gaining protection are subject to national regulations, and the availability of protection depends on the channels for reporting used.

Awareness

Public awareness is a key element to an effective system of protection for whistleblowers; without comprehensive campaigns and ethical culture within organisations, the employees/ potential whistleblowers may not know how to proceed when raising concerns at work, who should they turn to, or what remedies are available for them if they face a retaliatory action as a result of blowing the whistle.

In Slovakia, only 26 % knew about the availability of the legal protection in May 2016 (i.e. about a year and a half since the law became effective).

What protections are available? And do they work?

Slovakia

There is a legal framework established by a stand-alone WB law, has been effective since 2015. Despite the fact that the law offers broad protections to potential whistleblowers, its early implementation has been marked by low public awareness (only 26% knew about the availability of legal protection for whistleblowers[7]) and insufficient preparedness to take up the agenda on the side of responsible state agencies and employers. As a result, only about 30 persons were granted the status of a protected persons (in criminal or administrative proceedings) within two years since the law came in force.

The public attention, however, has been drawn to the issue of whistleblowing by numerous individuals who blew the whistle on mismanagement of funds in public institutions, hospitals, neglect in health care provision etc, and faced retaliation as a result. Most recently, Zuzana Hlavkova, a former employee at the Ministry of Foreign Affairs, disclosed the mismanagement of funds in Ministry’s preparations of cultural events in the Slovakia’s first ever Presidency in the Council of the EU. Both the Prime Ministers and the Foreign Minister called Hlavkova’s allegations an attack on the government and called the press who covered the case “anti-Slovak prostitutes”. The Foreign Ministry refused to publish all the relevant documents of the case, breaking the law on the free access to information in the process.

See also: http://transparency.eu/zuzana/

Czech Republic

Two-time Czech whistleblower now in Parliament
Within a four-year period, Libor Michálek exposed two national scandals, making him arguably the most famous whistleblower in Czech history. In 1996, Michálek was fired from the National Property Fund after exposing embezzlement related to a tunnelling project. He won an ensuing court case and was involved in compensating those who lost money in the affair. In December 2010, he blew the whistle on a scam by the Environment Ministry to inflate a public water treatment project by some €120 million and siphon the money to the Civic Democratic Party. Former Environment Minister Pavel Drobil, whose advisor Michálek had audiotaped discussing the scheme, resigned the next day. The recipient of numerous anti-corruption awards, Michálek went on to be elected to the Czech Senate in 2012.

Hungary

“Whistleblower law does not prevent the Red Sludge disaster”

On 4 October 2010, an estimated 800 million litres of caustic red sludge poured out of a reservoir at a Hungarian aluminium processing plant. At least seven people died, hundreds were injured or forced from their homes in several villages, and tens of millions of euros in private property was destroyed. Some employees at the plant knew about looming problems with the reservoir, but the company’s director threatened to fire them if they went to the authorities. Hungary’s new whistleblower protection law had gone into effect the previous April, but with no designated agency to accept complaints, any employees who wanted to come forward had no one to contact. Hungary still lacks an agency where whistleblowers can report wrongdoing.

Poland

Polish courts inconsistent toward whistleblowers
Judicial unpredictability in Poland clearly demonstrates how the lack of a comprehensive whistleblower law can leave whistleblowers without reliable protections. Interviews with employment court judges show that opinions on retribution can vary widely. In one case monitored by the Batory Foundation, a court found that an employee who was fired after reporting dangerous practices was not discriminated against by the company. Generally, judges only consider reasons for firing stated in the termination notice, meaning that whistleblowers may not even have a chance to present their arguments. If a whistleblower had underperformed or been late for work, said one judge, being a whistleblower would not compensate for this.

 

Other sources:

http://www.pravniprostor.cz/clanky/ostatni-pravo/ochrana-oznamovatelu-v-cr#pozn4

Case studies (PL, CZ, HU) from county reports in Whistleblowing in Europe – Legal protections for whistleblowers in the EU

 

 

 

 

Elaborated by: Barbora Tholtová, TI SK, contact: barbora.tholtova@transparency.sk

[1] Transparency International. 2013. Whistleblowing in Europe – Legal protections for whistleblowers in the EU

[2] Global Corruption Barometer 2016.

[3] Global Corruption Barometer 2016. Source data – Question 10.

[4] Global Corruption Barometer 2016. source data – Question 11.

[5] OECD. 2016. Committing to effective whistleblower protection.

[6] Association of Certified Fraud Examiners. 2016. Report to the Nations 2016.

[7] Focus Agency survey for TI SK – May 2016