Whistleblowing is now a feared term, especially for listed companies. Infosys and ICICI Bank have seen significant changes following receipt and investigation of whistleblowing complaints. Apart from the hype surrounding such complaints, whistleblowing appears to be the strongest method for exposing corporate fraud, malpractices and governance issues in a company, and the surest way to force a company to act.
The Companies Act, 2013 as well as SEBI mandate a vigil mechanism and mandatory whistleblower protection respectively, which govern private sector whistleblowing. Whistleblowing programs may be run (a) in-house (by Legal or Compliance divisions, or a combination of other independent functions), or (b) by an independent third party (a Big Four firm, or law firms, or other entities which provide such services). Given the threat of financial and reputational loss, and the availability of social media as channels to expose corporate wrongdoing, companies have established whistleblowing policies and take up such complaints seriously. No wonder then that a survey reported that whistleblowing complaints are on the rise.
Apart from complaints of corporate malpractice, companies have reported receiving whistleblowing complaints relating to personnel matters, including workplace harassment complaints – this could cover sexual harassment, bullying, hostile work environment, discrimination based on gender/disability/sexual orientation/caste/religion, etc. However, is whistleblowing the right way to raise a complaint of workplace harassment?
- Firstly, as an employer, I would be concerned if the number of workplace harassment complaints received through an anonymous or whistleblower program are high, especially if there are more complaints raised in this manner than through other grievance redressal modes (approaching a manager, HR, etc.). This could potentially point to structural issues in the organization which do not encourage honest reporting of such concerns, or there is deep rooted fear of retaliation for raising such complaints. Need for some introspection!
- Secondly, an anonymous complaint may be able to provide only limited information regarding the alleged incident/concerning behaviour. Such complainants may withhold important information while sending an anonymous complaint, for fear of being identified. While one can try to reach out to the sender, often, such efforts would be futile – no further contact information would be provided, or the email request for further information would remain unanswered.
- Thirdly, due to lack of complete information, an investigation by the employer into the complaint would probably remain incomplete – while one can seek to conduct checks and investigate basis the information provided, it is difficult to conduct a full investigation in the absence of a complainant. It would be akin to having a trial without the prosecutor! Further, how can one expect the respondent (accused) to defend himself/herself on the basis of an incomplete complaint.
- Lastly, an incomplete investigation could also lead to limited disciplinary outcomes. Consequently, if the whistleblower is a current employee and realizes that the respondent continues in employment, or there is no apparent disciplinary outcome, the sense of disgruntlement would only grow, thereby defeating the very purpose of raising the complaint. Another consequence is that the harassing behaviour could continue unchecked, leading to further entrenching a hostile work environment. Nevertheless, there could be cases where the complaint is very sensitive or relates to a very senior employee in the organization, and the complainant may be comfortable only with an anonymous complaint. In such cases, the employer would be well served to conduct basic background investigation, based on information available, and determine if any further action is merited as a result of the same. However, it is hoped that the whistleblowing complaint is only the start, and is resorted to in exceptional situations.
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