Helpful laws make things easier. Unhelpful laws do exactly the opposite, making everyone’s lives harder.  The problem is that unhelpful laws often end up in a kind of legal Bermuda Triangle with no one empowered or resourced to change them.

A university student cautiously approached me following my lecture on Speaking Up and Whistleblowing. She had been an intern at a UK bank and whilst there a senior employee had asked her to commit an unethical act. The student shared that whilst it was clearly unethical she wasn’t sure if it was illegal as well. She had declined to act on his request but felt vulnerable, exposed and afraid, with a secret gnawing of her heart telling her to speak up. Her principles had been challenged, principles that invited her to be intolerant of moral laxity and not to turn away from fear. But she remained silent, feeling disempowered.

I shared her story with a specialist in Whistleblowing law, to explore whether interns are protected under PIDA (the UK protected information disclosures Act). It turns out that if an intern is not paid they are not deemed a ‘worker’ under the legal definition and would therefore not be protected under PIDA.

However, what alarmed me was the lawyer’s attitude toward the event. ‘Did the intern make a report or disclosure?’ I was asked.  When I shared that she hadn’t made a disclosure, the response, ‘well then it doesn’t matter then, does it’ angered me. Whether a worker, paid or not, formally blows the whistle on unethical conduct or not isn’t the only measure of ‘what matters’.

What matters is that a staff member attempted to persuade an intern to commit an unethical act.
What matters is that the intern’s principles were challenged.
What matters is that the intern didn’t know her legal rights.
What matters is that she was unable to speak up informally or blow the whistle formally.
What matters is that she has been deeply impacted by her seeming respect for fear than her own need to find her voice.

Laws, Rules and Morals

Morality emerges from humanity precisely because it exists to serve humanity. 

Although we live in a rules oriented world it is our human-based (humanistic) moral system that mainly drives our behaviours. In the grand scheme, morally motivated citizens will behave or believe as they do, almost no matter what the law tells or demands of them.

In our society, people are so accustomed to the idea of every law having a lawmaker, every rule having an enforcer, every institution having someone in authority, that the thought of something being otherwise has the ring of chaos to it. As a result, when living our lives without reference to some ultimate authority regarding moral actions, the legal stance is to consider a person’s values and aspirations as arbitrary, as is demonstrated in my shared scenario. It is often argued that there would be no way to adjudicate disputes between people, no defense of a moral stand being possible in the absence of some absolute point of reference, most often a legal one.

Good, unambiguous laws help us follow the rules but we ought to recognise that ordinary human beings are the actual source of laws, rules and regulations and these are emanated through human aims, similar to everyone else’s. When a lawmaker is said to be needed for every law, the result is an endless series, since someone must be the lawmaker of the lawmaker’s laws.

The incumbency of Lawyers: Watch this .30 seconds film clip from A Time to Kill

In considering whether, how and if the intern would have been protected by the UK Whistleblowing law, I’ve turned to focus on why, to date, current whistleblowing laws have mostly been ineffective tools in protecting whistleblowers, changing organisational cultures nor social attitudes and norms.

I stand to be corrected, but would suggest there are many more negative than positive outcomes for whistleblowers. The common theme weaved throughout a whistleblower’s journey is this: A ‘worker’ observes unethical and perhaps illegal behaviour and attempts to speak up informally, mostly in their professional role and via the chain of command, to halt the unethical practice. Attempts to speak up internally are met with obfuscation, forcing the worker to blow the whistle formally, either via the formal organisational channel or externally to a ‘prescribed person’. Depending on how safe and robust the formal whistleblowing channel is, and more importantly, what the culture of the organisation is, an investigation will begin, or they will find cause to dismiss the whistleblower, or both.

It is at this juncture, that the whistleblower finds themselves in ambiguous, surprising, if not alarming, legal territory. Who would expect to blow the whistle on an unethical practice, be dismissed and then, most surprising of all perhaps, find themselves in an Employment Appeals Tribunal (EAT)? The very first action in this chain of events is to halt an unethical practice and yet they’re in an Employment Appeals Tribunal. The dots joining unethical practices, sometimes criminal, blowing the whistle and an employment appeals tribunal are precarious.

The easy explanation is that PIDA sits within the labour laws and not the criminal laws. Effectively, the unethical practice could continue, escalate or, hopefully, be halted. However, the focus, often in public view, is drawn away from the malfeasance to be placed onto the whistleblower, now jobless, unemployable, running out of money and possibly up against an organisation with power, plenty of time and resources. The EAT case revolves around the whistleblower attempting to prove causation for their dismissal and being granted permission to secure compensation, which can take years, the longer the better for most organisations. The tragedy of this scenario is that whilst the unethical practice the individual blew the whistle on fades into the background and the collective memory of society, the whistleblower is left fighting a war of attrition, sure to leave them financially, mentally and emotionally crippled. This in turn leads whistleblowers, and the public, feeling as though whistleblowers are harassed rather than served.

The law does not offer protection to whistleblowers; it enables those treated badly as a consequence of whistleblowing to seek compensation.

Plenty have argued that the law is impotent to impose a change in attitudes about whistleblowing and I’d like to focus on specific areas. (with thanks for insights from Professor of Economics at Stanford, Matthew Jackson)

The interplay between Laws and Social Norms
Generally there is an interplay between social norms and the enforcement of laws. However and because whistleblowing is not, and may possibly never be, a social norm, there is a strong conflict between the law of protecting whistleblowers and maintaining the prevailing social norms and behaviours of loyalty and cohesion. This in turn results in whistleblowing laws being perceived as ineffective and viewed with skepticism and mistrust.

The Legal Domain for Whistleblowers
All legal regulators have a domain in which action will be appropriate, by subject matter, by hierarchy (local, regional, national, international), or by mode of action. Outcomes are perceived as more or less legitimate, depending on which legal entity issues the ruling.

The link between Whistleblowing and Employment Appeals Tribunal Courts lack legitimacy with regards to addressing the initial action taken by the whistleblower. The EAT responds to the second, follow-on action, that of dismissal. Awareness of this seeming incongruence prompts individuals in society to feel less morally obligated to co operate to take voluntary action like whistleblowing.

Societal Expectations
The EAT court fails to persuade on the moral issues of whistleblowing because the domain in which the whistleblower finds themselves runs counter to public expectations. This failure to meet expectation hampers the EAT court in any attempts to change public attitudes towards whistleblowers and whistleblowing.

Fair and Just?
Most outcomes for Whistleblowers are viewed as unjust and unfair which undercuts the perceived legitimacy of the law, with compliance and cooperation minimised. This is because the law fails to comport to citizens’ intuitions of justice. When the legal system comports with justice, it gains legitimacy and compliance because citizens have learned to look to the law as a source of moral guidance

Helpful laws make things easier. Unhelpful laws do exactly the opposite, making everyone’s lives harder.  The problem is that unhelpful laws often end up in a kind of legal Bermuda Triangle with no one empowered or resourced to change them.

This acknowledgement, through my own and other Whistleblower’s experiences, fuels my drive to ignite our intrinsic morality by providing training to speak up via Courageous Conversations, before heading for the Whistleblowing door.

Strong connections and #courageousconversations “grease the skids” of organisations and help accelerate the work that must be done.

I’d love to be of service; please get in touch.