ACCA comments on new whistleblowing proposals
ACCA understands the European Commission’s rationale for proposing the Directive. The protection for whistleblowers currently in force in Europe is fragmented, but it’s critical that potential whistleblowers feel safe to come forward with the information they possess, especially if there are risks that could seriously harm the public interest. To that end, a balanced set of common minimum standards providing robust protection against retaliation of reporting persons would help bringing clarity and certainty, necessary to instill trust.
Jo Iwasaki, head of corporate governance at ACCA says: ‘The primary concern of the new proposal is the protection of whistleblowers. ACCA believes that protection is important – the consequences of speaking up can be life-changing. When an individual decides to speak up about something, this requires a lot of thought on their part.
‘People not coming forward to speak up can lead to serious harm to the public interest. Furthermore, when people ignore practices that disregard a specific law, the legitimacy of the law itself will be undermined; it’s not just the enforcement that becomes ineffective. In this sense, anything authoritative that protects people from the consequences of speaking up can be useful – not solely for the protection itself, but also that it legitimises the act of speaking up and whistleblowing in the eyes of the public’, Jo Iwasaki adds.
ACCA welcomes the obligation for Member States to ensure that legal entities in the private and public sectors establish appropriate internal reporting channels and procedures for receiving and following-up on reports. ACCA also welcomes the fact that this obligation should be commensurate with the size of the entities, taking into account their nature and the level of risk their activities pose to the public interest.
Jo Iwasaki says: ‘However, before protection becomes relevant, it’s important to emphasise what an organisation can do. A company’s healthy corporate culture can facilitate the process where employees consider taking actions such as speaking up when they are concerned about something taking place within the organisation. Companies have to see speaking up as something that would help them manage risks and avoid more serious issues such as violation of law, inappropriate conduct, crime or any type of harm.’
ACCA takes the issue of whistleblowers protection seriously, and recently published a report based on case studies of organisations that went through serious crisis of confidence, but came out as stronger organisations by developing more robust speak-up arrangements. ACCA’s report examines the challenges, opportunities and best practices associated with various types of speak-up arrangements and provides practical recommendations to those who develop, operate and oversee such arrangements to make these effective.
Article 5 of the Directive sets out the minimum standards that internal reporting channels and procedures for following up on reports should meet. ACCA agrees that it’s fundamental that reporting channels guarantee - among others - the confidentiality of the identity of the reporting person.
Jo Iwasaki stresses: ‘Effective internal speak up arrangements to be put in place by companies should include establishing multiple, safe and confidential channels for individuals to report to, analysing all instances to identify what’s going on, as well as investigating specific cases. It’s also very important for companies to take actions and feedback without compromising confidentiality within the organisation, to demonstrate that they value reports. The effectiveness of such arrangements rely on the willingness to respond at different levels of management. To ensure this, responsiveness must be well organised, clearly mandated and adequately resourced.’
Three months after providing the report internally, if the reporting person did not receive the expected feedback, the Directive sets up the conditions for external reporting to relevant competent authorities. ACCA notes that the Directive differentiates internal and external reporting, but warns that the distinction may not be that clear cut.
Jo Iwasaki explains: ‘It may be the case that the company itself decides to hire an external body to deal with speak-up cases to respect confidentiality. This may be relevant especially if the organisation has suffered crisis of confidence.
‘In any case, it’s vital that entities provide easily understandable and widely accessible information on internal reporting procedures as well as on procedures to report externally. It’s important to avoid discouraging individuals and make sure that employees properly get to grip with the process, and aren’t discouraged by a very legalistic list of conditions while the reporting of a matter of significance becomes delayed.
‘As always the devil’s in the details and implementation of the Directive’s provisions will be decisive. This is just the beginning of the legislative journey for the proposal, and it’s unlikely to be all smooth sailing. ACCA looks forward to take part in the on-going debate’, Jo Iwasaki concludes.
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