Higher Education (HE) organisations are essential public service sectors focusing on research and research-informed teaching. In many countries, HE is self-regulated, having its own institutional policies and guidelines. Therefore, they mostly avoid external accountability for internal conflicts, malpractice, or misconduct. Any reported conflicts are usually ‘handled’ by the appointed members at the managerial or executive level.
What if the accusation is against the very own people who are responsible for investigating such allegations?
Whistleblowers who speak out often get retaliation, bullying, discrimination, etc., which may result in job loss (or quitting the organisation). This applies to both the academics as well as the students. Retaliation for student whistleblowers comes in the form of limiting their progression, graduation or even refusal of references for employment. Many of these would inadvertently cause harm to their career and their mental health. Likewise, academics and the support staff are affected by victimisation for whistleblowing.
Some universities now expect non-disclosure agreements (NDAs) from the staff to mainly protect the institutions from ‘embarrassment’ due to whistleblowing.
Inevitably these NDAs are being used against whistleblowers, threatening limitations to their career progressions. Unfortunately, these ‘detriment strategies’ are often difficult to prove and there is no clear framework or guidance around investigating whistleblowing concerns.
Considering the above, ENAI has established the victim support working group dedicated to providing advice, support, and protection for all those intending to/affected by whistleblowing malpractices or affected by the reprimanding actions after whistleblowing. As a member of this working group, I provide my thoughts and suggestions for potential whistleblowers about some basic considerations before, during and after their complaint.
I have given these three different titles:
(a) pre-whistleblowing measures
(b) making a complaint (whistleblowing)
(c) post-whistleblowing measures.
It is worth noting that this summary of thoughts is based on my experience advising whistleblowers.
Pre-whistleblowing measures
Whistleblowing against any malpractice (or misconduct) by coworkers or superiors needs much courage. It is never too late to report a concern, which can be raised at any time, either an incident that happened in the past, is happening now, or might happen in the future. However, it is essential to make sure that the concerns are valid. Misconducts linked (or may lead) to criminal offences, regulatory violations, health & safety concerns, environmental breaches, or deception/concealment are considered serious contraventions against judicial conventions. Therefore, whistleblowing against these violations will be protected by law.
In the UK (and many other countries), personal grievances such as bullying, harassment and discrimination are not covered by whistleblowing law unless the case is in the public interest.
Ensuring the concerns are genuine and the case is valid is essential. It is also vital to ensure the right kind of concerns are reported with evidence to minimise embarrassment and retaliation. To do this, one must collect corroborating evidence to prove the misconduct. This may take time, but it is essential to transform the accusations into a meaningful case against the individual and/or organisation.
It is important to understand that the whistleblower is only a witness who reports potential misconduct; they are not the investigators.
Once the evidence is in hand, it is important to check the institutional measures (including policies) to understand the reporting requirements, procedures, and the approved channels for reporting. It is essential to follow the due processes in the order and how they have been described. At this juncture, it is also advisable to obtain impartial advice from the trade unions (if any) and neutral bodies (such as ENAI). Sometimes, depending on the complexity of the complaint, it is also advisable to get advice from more than one independent advisor.
Most importantly, it is worth measuring the seriousness of this allegation and whether it might lead to individual or institutional reputational damage. In the latter case, ensuring the internal processes are adhered to is essential.
Although involving lawyers is not entirely necessary, they may be able to provide judicial advice. This, of course, would depend on one’s financial affordability.
Making a complaint (whistleblowing)
At this point, it is worth discussing the leadership commitments against misconduct with your colleagues by checking any reported incidences in the past (if any) and how the institution has dealt with them. It is worth checking whether there are any independent, protected resolution systems for allegations of retaliation. Using the institutional complaint procedures as a guide, an initial discussion should be initiated with identified personnel (this may be the operational manager in many institutions). Initial discussions can usually be informal to understand/obtain managerial support. Should the accused be the immediate manager, then the complaint should be directed to the next identified authority. If the informal discussions are unsatisfactory, a formal complaint can be initiated. In any case, employees have the right to report anything anonymously.
If the complaint has corroborating evidence, name disclosure with the confidentiality request can also be made. The manager is expected to abide by the confidentiality laws.
Once the complaint is accepted, you may request a timeline for the internal investigation and wait for the due process to complete. Reporting your concerns directly to the media during this investigation process is not advisable.
Post-whistleblowing measures
Many whistleblowers have experienced individual and institutional victimisation after their complaints. Victimisation would mean unfair treatment of individuals because they complained (or helped someone to make a complaint) about malpractice or misconduct. Therefore, it is essential for anyone who reports misconduct to take measures to avoid retaliation and victimisation.
Although the law in many countries protects whistleblowers against victimisation, many whistleblowers do not have the financial means to obtain judicial assistance.
It is advisable to confidentiality informing the trade union about the complaint and get their support. Personally, one should identify the nature of unfair treatment, the individuals involved, and whether it is linked to the compliant (or whistleblowing). It is vital to obtain evidence of unfair treatment and understand whether it is worth reporting to the institutional authorities and beyond.
If the treatment continues, a grievance against unfair treatment can be lodged by explaining the details with evidence and how this affects the working pattern/ mental status. Should the grievance process be unsuccessful, calling for an employment tribunal is the only alternative.
In summary, it takes courage to whistle the blow against individuals or institution in which one work. However, by doing so, one would positively impact achieving good practice with integrity amongst individuals and organisations. This summary would help as precautionary recommendations for making a complaint of malpractice.
About the Author:
Dr Shiva Sivasubramaniam is the Head of Biomedical and Forensic Science at the University of Derby (UK). His main focus is medical ethics, internationalization and academic integrity.