At a glance:
• Companies must ensure that they protect not only whistleblowers, but those who may be accused.
• Legal principles, such as the presumption of innocence until guilt is proven, are just as important as the protection of personal data of whistleblowers.
• Define clear and transparent processes to protect all involved parties and communicate them within the company.
Whistleblowers, as well as those accused of potential misdeeds, are often in the spotlight, albeit unintentionally. Due to the potential for retaliation that whistleblowers may face from their employers, whistleblower protection has become a top political priority in the EU. Planned EU directives explicitly define the protection of individuals affected by submitting a whistleblowing report. Furthermore, the need to protect those who may be accused by whistleblowers is nothing new. Many existing legal statutes require companies to actively protect accused individuals when processing whistleblower reports. These protections are firmly rooted in an employer’s general duty of care.
Whistleblower Systems Also Help Protect the Accused
In whistleblower cases, employers are obligated to take protective measures on behalf of both the accused and the informant. Maintaining anonymity and discretion are paramount in preventing information about potential misconduct from being leaked to the public and subsequently misrepresenting innocent individuals as guilty actors. As one way to ensure confidentiality and protection of all parties involved, anonymous whistleblowing systems are a good option for the safe transmission of misconduct cases and personal information.
But, the introduction of a whistleblowing system alone does not fulfill the necessary obligations to protect individuals accused of misconduct. The following points should be taken into consideration whenever processing a whistleblower’s information in order to protect the accused party:
- Handle the Identity of the Accused Party with Absolute Confidentiality
The content of a whistleblower message – in particular, the identity of an accused individual – must be disclosed only on a strict need-to-know basis. Information containing the identity of the accused individual must only be available to the individuals who are directly involved in an investigation, or those involved due to their role within the company (for example, senior management).
- Preserve a Presumption of Innocence
Incriminating, as well exonerating information, must be taken into careful consideration when processing whistleblowing claims. Internal investigations should only be initiated if there is evidence of a significant breach of duty. The presumption of innocence applies until breach of duty has been clearly demonstrated.
- Exercise Care With an Accused Party
If there is a founded suspicion of a significant breach of duty, or even a criminal offense, the involved party should be given the opportunity to fully explain their position before facing the possibility of serious penalties, such as termination without notice. While being questioned, the accused party’s good faith obligation to the employer requires them to cooperate fully. However, anyone accused of misconduct retains the right to remain silent to avoid self-incrimination, in the case that their statements can later be used in a court of law or in criminal proceedings.
- Vigilantly Enforce Data Protection
The importance of protecting the accused party’s personal data cannot be overstated. The individual must be kept fully informed about the use of their data. However, if there is a compelling reason to believe that the information provided by the accused party could jeopardize the internal investigation – for example, if evidence could be destroyed or falsified – then the use of personal data may, in some cases, be withheld from the involved individual. In any whistleblowing case processed, the accused individual’s personal data must either be deleted or be made anonymous in the event that the whistleblowing accusation prove to be unfounded, or once the investigation has been completed.
- Define Clear and Transparent Processes for Protecting Accused Individuals
Define consistent processes to protect accused parties through every phase of processing a whistleblower case. Communicate these processes openly within the company and ensure that they are integrated into a formal whistleblowing policy that is available to all employees.
When initiating a whistleblowing system, companies must take both sides of any potential claim of misconduct into equal consideration. When both defendants and informants are protected against retaliation or retribution, employee confidence in whistleblower systems is greatly strengthened, which will result in more quality and trustworthy information being communicated through the whistleblower system.
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