Internal witness support programs

Agency procedures and systems

The reasons for internal systems for supporting public interest whistleblowers and other internal witnesses are already well demonstrated. Chapter 5 reviewed the extent of the problems that can befall those who report wrongdoing, whether in the form of mistreatment, either from management or from colleagues, or other indirect impacts including those associated with natural tension and stress. In the case study agencies, whistleblowers’ evidence of reprisals was confirmed largely by case-handlers and managers. Further, Chapter 6 demonstrated that as soon as a report of wrongdoing becomes more complex—for example, as soon as a case involves more serious wrongdoing, more alleged wrongdoers and more senior people—the risks of mistreatment rise exponentially.

The data presented in Part 1 nevertheless also demonstrate why these are not problems of which agencies can afford to wash their hands, and hence they demonstrate why internal support strategies represent a logical response. Contrary to many assumptions, the basic value of whistleblowing to organisational and public integrity is widely appreciated in public sector organisations, by fellow employees and managers alike. Notwithstanding the known incidence of reprisals and other conflicts, the principle is widely accepted that employees who report wrongdoing should not be made to suffer as a result. Contrary to many assumptions, the bulk of public interest whistleblowing begins and ends as an internal process, for which no-one other than the agency is currently responsible. In common law, employers already have a duty of care to employees to provide support and guidance through these processes. Finally, agencies know that it is in their own interests to facilitate internal reporting, as an alternative to external whistleblowing—and that this goal is made difficult if they have made no allowance for the protection of those who come forward. For all these reasons, how to support and protect whistleblowers is already a ‘live’ internal issue in most agencies.

How many agencies currently meet these needs with explicit policies, procedures and programs? The answer is: only a limited number. Of the 304 agencies who responded to the agency survey, 76 per cent (231 agencies) said that they had ‘internal disclosure procedures’ of some kind. These procedures are, however, often focused only on encouraging staff to make disclosures and dealing with how they should be investigated—as will be confirmed in more detail in Chapter 10. Tables 9.1 and 9.2 show that fewer agencies currently have procedures or systems that extend to the identification of employees needing ‘active management support’ as a result of their report or disclosure. Table 9.1 shows that only 54 per cent (162) of all agencies surveyed, including 61 per cent (70) of the agencies that participated in the employee survey, indicated that they had such procedures or systems. All 15 case study agencies indicated that they had such systems.

Moreover, when agencies indicated that they had relevant systems, these were often acknowledged to be only ‘informal’. Only 34 per cent of all agencies surveyed had formal procedures for the provision of support, while Table 9.2 shows that only 20 per cent of agencies with procedures—11 per cent of all agencies surveyed—supported these procedures with a formal program.

While the ability to provide a dedicated program is undoubtedly often constrained by issues of agency size, these figures indicate that the development of such programs is still only in its early stages in the Australian public sector. In the meantime, as also shown by Table 9.2, in the majority of agencies, the only available strategies for support lie with generalised employee welfare services (not tailored for whistleblowing) or support services that agencies believe are available from external or central government agencies. In fact, at the time of the survey, few if any external agencies provided any such support services in the jurisdictions studied, beyond general advice in relation to reporting and investigation processes. While there is a recognised need for support programs, there is also uncertainty—if not confusion—about what is available and how it should be provided.

Table 9.1 Presence of agency systems for providing internal witness support (per cent)

Does your agency have procedures or systems for identifying internal witnesses who may need active management support as a result of their report or disclosure?

All agencies

(n = 304)

Employee survey agencies

(n = 118)

Case study agencies

(n = 15)

No

46 (136)

40 (46)

-

Yes, formal procedures

34 (101)

41 (47)

87 (13)

Yes, informal procedures or systems

20 (61)

20 (23)

13 (2)

Total

100 (298)

100 (116)

100 (15)

(Missing)

(6)

(2)

-

Source: Agency survey: Q25.

Table 9.2 Source of internal witness support in agencies (per cent)a

Who does your agency rely on to support or manage internal witnesses?

All agencies

(n = 162)

Employee survey agencies

(n = 70)

Case study agencies

(n = 15)

General assistance or counselling services available to all employees

83 (135)

81 (57)

87 (13)

Our own informal internal witness support systems

46 (74)

57 (40)

47 (7)

External/central government agencies

24 (39)

17 (12)

13 (2)

Our own, formal internal witness support program

20 (33)

29 (20)

60 (9)

a Total does not add to 100 per cent because multiple responses were permitted.

Source: Agency survey: Q27.

Overall, these results show a cup that is more empty than full. The fact that many agencies do have systems and procedures for supporting internal witnesses confirms that the provision of support is recognised by many as important. The high proportion of agencies admitting to having no organised approach, however, indicates that many agencies are yet to scratch the surface in this direction. These results show that across the public sector, there could be considerable untapped potential for reducing the number of internal witnesses who feel mistreated, if only for the reason that many agencies are yet to make an organised effort.

The question becomes, what effort should be made? In some jurisdictions, as discussed in Chapter 11, all agencies are in theory under a legislative obligation to have such procedures and systems and their failure to do so already represents a technical statutory breach. The low take-up of procedures and systems indicates, however, a deeper problem than simply lack of organisational will and commitment. Even where statutory obligations exist, these are short on useful detail. Until this research, there have been little data on the nature of more formal programs and, most crucially, on whether they have any effect. The remainder of this chapter begins to broach these questions.

Scale and uptake of internal witness support programs

When agencies do have more formalised internal witness support programs, what is the size of these programs? Most importantly, how many internal witnesses do they reach? The answers confirm that even where they exist, more formal programs are currently relatively weak in terms of scale and—most importantly—accessibility.

Table 9.3 shows that whether formal or informal, most internal witness support programs currently function without any dedicated staff. Only 21 per cent (65) of all agencies could provide an estimate of having expended any staff resources on internal witness support, including contracted support, with the overall number of full-time equivalents (FTEs) very low. The case study agencies, all of which had procedures but only 10 of which provided staff support to a program, expended the highest number of staff resources, averaging 3.2 FTE per agency.

Table 9.3 Agencies with staff resources for internal witness support (FTE and mean)

Estimated number of staff (FTE) involved in internal witness support and management

All agencies

n = 65

Total (mean)

Employee survey agencies

n = 32

Total (mean)

Case study agencies

n = 10

Total (mean)

Central support unit/services

65.0 (1.0)

40.0 (1.2)

12.0 (1.2)

Other nominated support people

67.1 (1.0)

16.1 (0.5)

6.0 (0.6)

Contracted/external support people

33.1 (0.5)

17.1 (0.5)

9.0 (0.9)

Other

17.0 (0.3)

9.0 (0.3)

5.0 (0.5)

Total

182 (2.8)

82 (2.5)

32 (3.2)

Source: Agency survey: Q30.

Table 9.4 Internal witnesses in receipt of active management support (number and means)

Number of internal witnesses who received active management support under agency procedures or systems

All agencies

(n = 136)

Employee survey agencies

(n = 54)

Case study agencies

(n = 14)

a.

2002–03

408 (3.0)

378 (7.0)

168 (12.0)

b.

2003–04

392 (2.9)

356 (6.6)

144 (10.3)

c.

2004–05

427 (3.1)

388 (7.2)

192 (13.7)

 

Three-year period

1 227 (9.0)

1 122 (20.8)

504 (36.0

Source: Agency survey: Q36.

Table 9.4 sets out the number of individual employees who accessed agency support services in the three years before the survey, according to responses to the agency survey. These data are not limited to agencies with formal programs or dedicated staffing, but include all agencies. Slightly less than half of all agencies, and 84 per cent of all agencies with procedures for providing ‘active management support’, were able to estimate the number of employees assisted—totalling more than 1200 in the period. Across the 14 case study agencies that supplied data, all of which had procedures and most of which had programs, the estimated total of employees assisted was 504, averaging 36 employees per agency in the three years.

These figures are not insignificant and confirm that, where programs exist, they do have a real workload. The scale of these programs is, however, placed in perspective by the employee survey data from earlier chapters. The 14 case study agencies had a combined total of approximately 330 000 employees at the time of the research. Applying the averaged data for reporting rates arrived at in Chapter 2, which also held for the group of case study agencies, these agencies can be estimated as having had in the order of 38 400 whistleblowers within their ranks in the two-year period (12 per cent of employees, 97 per cent of whom reported internally in the first instance). The total of 504 individuals estimated to have been provided with organised support by these agencies, in the three years, represents about 1.3 per cent of the estimated total whistleblower population.

Clearly, a large proportion of the whistleblowing described in Chapter 2 involves low-level reporting, with reduced risk of major conflict or management reprisal. Therefore, a more meaningful way of gauging the extent to which support programs are reaching their target audience is with reference to the number of whistleblowers who go on to report mistreatment. Across the case study agencies, on average, 20 per cent of whistleblowers went on to report having been treated badly by management or colleagues—giving an estimate in the order of 7700 individuals. On this measure, the total individuals estimated as being provided with organised support (in three years) still represents only 6.5 per cent of the population that can be estimated in retrospect as having been of potential need (in two years). The estimated size of the ‘at-risk’ population could be further refined in various ways, based on Chapter 6. On any analysis, however, the gap between the number of employees provided with organised support and the likely number of whistleblowers in need is very large.

Why are such a small minority of at-risk whistleblowing cases—probably less than 6 per cent—making it onto the ‘radar’ of organised internal witness support programs? There is a range of possible explanations.

A first explanation is that the programs themselves, based on the levels of resources involved, have never been designed to operate at a large scale—even if agency resources would permit this. In part, this limited scale can be explained by the fact that, until now, little comprehensive evidence has existed to indicate how much whistleblowing goes on or what the size of the at-risk population might be. Further, it is logical for agencies to have designed any centrally organised and monitored program to meet perceived need—that is, to have planned to service only a limited proportion of those at risk, in order to focus on the worst types of known cases.

A second explanation is that there could be low staff awareness of the existence of the support program; while a third explanation is that even if they are aware of it, staff might be unwilling to access this support.

All these explanations, however, beg the question of exactly what ‘gateway’ procedures are used to make support services available to employees who report. Tables 9.5 and 9.6 set out evidence for how internal witnesses currently access the available support and the types of individuals at which support programs are aimed.

 Table 9.5 How internal witnesses access available support (per cent)
 

All agencies

(n = 162)

Employee survey agencies

(n = 70)

Case study agencies

(n = 15)

The internal witness must approach a designated person in the agency

27 (43)

30 (21)

27 (4)

The internal witness is approached by a designated person in the agency

23 (38)

27 (19)

27 (4)

Combination of the above

15 (24)

17 (12)

33 (5)

Our agency’s procedures do not specify

19 (31)

20 (14)

7 (1)

Other

27 (44)

20 (14)

20 (3)

Source: Agency survey: Q28.

Table 9.6 Types of internal witnesses recognised as potentially needing support (per cent)

Which best describes the type(s) of internal witnesses recognised by agency procedures or systems as potentially needing active management and support?

Case-handlers and managers combined

(n = 464)

Integrity case-handlers

(n = 40)

Any internal witness/employee who provides information about wrongdoing

41 (192)

11 (9)

Any internal complainant/employee who reports

30 (138)

10 (4)

Those whose case becomes or is likely to become difficult to manage

14 (63)

8 (3)

Those identified as making a formal public interest disclosure, protected disclosure or whistleblowing report under legislation

11 (50)

33 (13)

Those who ask to be, or consent to being, identified as a ‘whistleblower’

5 (21)

28 (11)

Sources: Case-handler and manager surveys: Q46; integrity case-handler survey: Q43.

These data reveal some uncertainty about the best methods for identifying those employees who are in need of organised support and for admitting them to the program. As shown in Table 9.5, about 20 per cent of all agencies surveyed did not have any specified procedure for how employees should be identified. In these agencies, it is little wonder that the result is hit-and-miss. The same results also show a divergence between agencies that rely simply on whistleblower self-identification and agencies that rely on designated people approaching individual whistleblowers for inclusion. Less than 20 per cent of all agencies (but one-third of the case study agencies) use both methods.

In either case, however, a range of problems arises. If agencies are entirely reliant on employee self-identification, they face the problems of ensuring high staff awareness of the fact that support is available and persuading the more deserving staff to self-identify—not simply as a ‘whistleblower’, but as one unable to self-manage the situation. Given the evidence in Chapter 6 of the difficulties faced by whistleblowers in accurately assessing reactions and risks, self-identification alone is unlikely to be a reliable strategy, even if staff know of and are prepared to trust the program. Anecdotally, there is evidence that many deserving staff prefer not to access specialised support, at least initially, for fear of the possible negative effects of being tagged as a whistleblower. Conversely, any staff who see whistleblowing processes as possible alternative means for pursuing a personnel or private grievance could be very ready to enlist in such a program.

For all these reasons, best practice is more likely to be found among the 42 per cent of agencies (and 60 per cent of case study agencies) in which at-risk employees are identified and approached by designated people—whether as a sole method or in addition to self-identification. The data show, however, the significant challenges that still stand in the way of agencies extending organised support in this way. First, this relies on an overall understanding of the level of whistleblowing in the organisation, of the kind that is only now becoming available through research such as that outlined in this book. Second, Chapter 4 showed that the bulk of employee disclosures were made to supervisors and other managers in the first instance, being also where many of the most significant reprisal risks could lie. Just as this raises important issues for how investigations are triggered and carried out (Chapter 8), it also raises important issues about effective methods for early identification of those in need of support. In many agencies, the necessary management information systems might not exist that would enable monitoring of incoming cases for assessment as to likely need for intervention—or such systems might not exist in relation to complaints and internal workplace issues. The creation of effective systems for the receipt and notification of all such disclosures, to ensure that appropriate responses can include intervention for the purposes of internal witness support, is an important priority.

Table 9.6 also shows a diversity of opinions, within agencies, as to what types of employees are eligible for support. These data come from case-handlers and managers in the case study agencies, as well as from case-handlers from those integrity agencies from which more than one response was received. There was significant variation in who case-handlers and managers thought were the intended focus of protection, indicating some differences between agencies, but also conflicting assumptions within agencies since, in any one agency, at most only two-thirds of respondents selected the same response. While overall the largest single group of respondents chose the least restrictive definition, and the group sizes reduced in line with increasing restrictiveness, the fact remains that they could not all be right.

Similarly, in integrity agencies in which more than one case-handler responded, at most, only three-quarters of the respondents selected the same answer. Most concerning was the fact that, unlike the case study agency case-handlers, 61 per cent of integrity agency case-handlers selected one of the two most restrictive definitions. This could suggest that integrity agency case-handlers tend only to see cases that fit these definitions. Their assessment could, however, also reflect the reality—as indicated by the data already outlined—that only a very narrow band of employees who report wrongdoing are in fact coming into contact with agency support systems.

Finally, these analyses point to problems in the relationship between legislative requirements and agency practice, in the extent to which statutory definitions of ‘public interest disclosures’ are helping or hindering the provision of internal support. As outlined in Chapters 1 and 2, the amount of public interest whistleblowing that occurs, which should logically trigger the basic statutory provisions for whistleblower protection that exist in most jurisdictions, is much higher than is currently being reported under that legislation (where reporting obligations exist). This could be explained by the restrictive nature of some statutory definitions; by misunderstanding or misapplication of the definitions within agencies; or, again, by simple lack of management information about the true number of internal disclosures that satisfy those definitions. The key problem is that very little purpose exists for such definitions, if not to ensure that as many at-risk whistleblowers as possible (potentially, almost any) can be identified, assessed and, where necessary, provided with an appropriate level of internal witness support. The fact that current statutory frameworks are providing only limited assistance—and some barriers—to the meeting of this goal becomes an important issue for discussions of legislative reform, taken up in Chapter 11.