The threat of retaliation is a black cloud hung over the heads of would-be whistleblowers. Whether it is merely a perceived threat or an actual likelihood, fear of retaliation can determine whether a person reports misconduct or not. The 2019 Whistleblowing Directive from the European Union (EU) attempts to mitigate this, but whether it can do so effectively remains to be seen in practice. To better understand how and why retaliation can be such a big deal, this article addresses the following key points:
- Desire to blow the whistle;
- Whistleblower protection.
Desire to blow the whistle
Presence of a fear of retaliation has a direct impact on whether or not a person is likely to blow the whistle. A study by Khan et al. (2022) found that the presence of a perceived threat of retaliation can actually reduce the desire of individuals to blow the whistle. Salient fears they found were reported to be “pressure from peers” and “verbal harassment or intimidation”.
According to the study, the threat of retaliation seems to be somewhat mitigated the more serious the wrongdoing in question. This means that if people are afraid, they are not likely to report small instances of misconduct. The problem is that these small issues can always turn into big ones. This is why early risk management through implementation of a robust whistleblowing system pays off.
Rationalisation can play a crucial role in this process. It persuades observers of wrongdoing to be aware of retaliation and regulates the connection between the seriousness of the transgression and the intention to blow the whistle. Khan et al. (2022) explain that rationalisation can minimise the perceived effect of threats to whistleblowing. This can take the form of support from colleagues, availability of anonymous reporting, or other types of legal protection.
Moreover, the study explains that through rationalisation the whistleblower can better examine the possible consequences of speaking up and increase the sense that misconduct has indeed occurred (the opposite of wilful blindness where legitimate concerns are ignored). This has the effect of increasing the desire to blow the whistle, which then allows the organisation to address the problem area.
Despite the broad scope of the EU Whistleblowing Directive (2019) there are some instances where people who may want to speak up are not protected. These include classified information, legal and medical privilege, secrecy of judicial deliberations and rules on criminal procedure. Specifically, classified information refers to salient security issues of states rather than private companies.
The deal with this is that would-be whistleblowers need to be made aware of these exceptions before reporting. There is a duty on behalf of employers to make such information clearly and easily accessible. If it is not, individuals can end up in dire situations with no legal protection. Retaliation would then be fair game.
To conclude, while the EU Directive (2019) goes a long way to mitigate the possibility for retaliation, the fear of such actions can still prevent people from speaking up in the first place. Rationalisation can have a positive effect on this circumstance convincing witnesses of the benefit of reporting and minimising associated costs. Finally, there are exceptions in the scope of the Directive which can leave certain people vulnerable. In this case there must be an emphasis on spreading awareness about what these are, to prevent people from becoming vulnerable or incriminating themselves.
For the curious reader, we have also created another blogpost Four benefits of Whistleblowing for organisations which highlights the importance of allowing and encouraging whistleblowing, seen from an executives point-of-view.
Khan J, Saeed I, Zada M, Ali A, Contreras-Barraza N, Salazar-Sepúlveda G, Vega-Muñoz A (2022) ‘Examining Whistleblowing Intention: The Influence of Rationalization on Wrongdoing and Threat of Retaliation.’ International Journal of Environmental Research and Public Health. 19(3), 1752–.
Saloranta, J (2021) ‘The EU Whistleblowing Directive: An Opportunity for (Operationalizing) Corporate Human Rights Grievance Mechanisms?’ European Business Organization Law Review. 22(4), 753–780.