TWN Info Service on UN Sustainable Development (Aug18/02)
14 August 2018
Third World Network
   
Improvements needed to whistleblower policies in UN system
Published in SUNS #8739 dated 9 August 2018

Geneva, 8 Aug (Kanaga Raja) - While there has been some progress on whistleblower policies and practices in UN system organisations, all organizations need to continue improving in terms of their written policies, pay particular attention to the practices associated with supporting those who do report, and proactively protect those persons from retaliation, says a report by the UN's Joint Inspection Unit (JIU).

The report (JIU/REP/2018/4) released on 6 August was prepared by Inspectors Eileen A. Cronin and Aicha Afifi after a review of such policies and practices in the 28 United Nations system organisations.

JIU inspectors are elected in their individual capacities by the UN General Assembly, and function independently and autonomously.

According to the report, some United Nations system organizations, primarily the ones that have had policies and functions in place for several years, have made good progress.

These organizations have benefited from more experience in implementing the policies and procedures associated with protection against retaliation and have responded in somewhat substantive ways to the scrutiny from legislative bodies and the media. This is reflected in some written policies and good practices.

"While there has been some progress, this review confirms that all organizations need to: continue improving in terms of their written policies; pay particular attention to the practices associated with supporting those who do report; and proactively protect those persons from retaliation," said the JIU Inspectors.

They noted that most small and medium-sized organizations are lagging behind in this regard, and more attention is needed to bring their written policies into line with best practices and ensure that their processes and procedures are sufficient, effective and efficient, and that the relevant functions are independent.

The most pressing areas in need of improvement were evident to the Inspectors in all of the United Nations system organizations.

They said while the written protection against retaliation policies are a start, in the end they are inconsequential if the systems, functions and, most importantly, the executive heads do not reflect what is written and actively support it with meaningful and substantive actions.

"Given the recurrent tendency among the media and civil society organizations to paint all United Nations system organizations with a broad brush whenever a high-profile misconduct case emerges in one organization, the reputational damage to the entire United Nations system through the imposition of collective guilt is evident."

The Inspectors found that all organizations need to invest in improvements to their accountability frameworks and that it will take a concerted effort from staff, senior leaders and legislative bodies to build a culture of integrity and accountability that reflects the espoused values of the United Nations.

According to the JIU report, whistle-blowing and protection against retaliation are essential components of an organization's accountability and integrity; when responses are inadequate, or where systems are weak, personnel are deterred from coming forward to report misconduct and wrongdoing.

This increases the risk of substantive damage to the organization's reputation and undermines operations.

Over the past few years, there have been high-profile cases of whistle-blowers from United Nations system organizations who have gone public for a variety of reasons, including a perceived lack of adequate action by their organization in response to their initial reporting of misconduct and/or retaliation.

These high-profile cases in United Nations organizations point to policies and practices that appear to have failed to meet the high standards of accountability that these entities espouse.

The Inspectors said the present system-wide review consequently focuses on policies, processes and procedures for reporting misconduct/wrongdoing and for protecting from retaliation those who do report.

The review was conducted from May 2017 to May 2018.

The scope of the review was system-wide and covered the United Nations Secretariat, funds and programmes, specialized agencies and the International Atomic Energy Agency (IAEA).

According to the report, the review involved an analysis of protection against retaliation policies, questionnaire responses and other documentation collected from the 28 JIU participating organizations; interviews with over 400 stakeholders, including 17 individuals who had reported misconduct/wrongdoing and retaliation; focus groups; and a global staff survey on whistle-blower policies, which was conducted across the United Nations system organizations in order to measure perceptions.

JIU reviewed 23 protection against retaliation policies (covering 28 UN participating organizations) that build upon and complement other internal policies pertaining to the reporting of misconduct and wrongdoing.

These protection against retaliation policies, more often than not, have emerged as ad hoc responses to high-profile whistle-blower cases and/or have been developed in response to requests by Member States.

"Consequently, existing protection against retaliation policies are marked by inconsistencies and limitations in operational effectiveness and tend to vary in terms of the scope of activities and personnel covered, mechanisms and channels for reporting, and processes and procedures for mitigating and handling claims of retaliation," said the Inspectors.

To identify and address these deficiencies, best practices criteria for written protection against retaliation policies were developed in consultation with an international expert on whistle-blowing policies and practices who is affiliated with an accredited academic institution.

This encompassed the use of source documents from international experts, intergovernmental and non-governmental organizations and public and private sector entities.

The process generated five best practices criteria for protection against retaliation policies: (a) reporting of misconduct/wrongdoing; (b) protection against retaliation; (c) additional support available to persons reporting misconduct/wrongdoing; (d) preliminary review, recording and investigation of misconduct/wrongdoing and retaliation reports; and (e) general strength of the policy.

According to the Inspectors, the five criteria include 22 indicators against which the policies of the participating organizations were rated.

Each organization validated their respective ratings and provided additional documentation to contest ratings they disagreed with. All information received was carefully reviewed, and some of the ratings were updated.

With respect to the first criterion on reporting misconduct/wrongdoing, the Inspectors said the first best practices criterion for written protection against retaliation policies covers the enabling conditions that encourage personnel to report misconduct/wrongdoing. Only three organizations fully met all the requirements under this criterion.

The Inspectors noted that most pertinent to this criterion is the accountability of the executive head of the organization.

The second criterion on protection against retaliation covers the mechanism s and processes, identified in the written policy, that make it possible for a person to feel secure in reporting retaliation (so as to encourage earlier reporting of misconduct/wrongdoing) and for that person to receive due protection.

Such provisions are essential for furthering a culture of accountability in an organization, as fear of retaliation is one of several major deterrents for whistle-blowers. All organizations either fully or partially met the indicators for this criterion.

On the third criterion on support for complainants, the Inspectors noted that complainants need support and guidance in reporting misconduct/wrongdoing o r retaliation, due to the associated risk to their careers, personal safety and/or social and personal well-being. Only four organizations fully met all three of the indicators under this criterion.

A significant deficiency in the whistle-blower protection system in many organizations is the lack of an external and independent mechanism for hand ling appeals when a prima facie case of retaliation is not determined.

Without an appeals mechanism, the ethics office is placed in the unenviable and de facto role of final adjudicator on highly sensitive matters that can significantly disrupt the professional and personal lives of complainants, and may also carry significant reputational risks for the organization.

The need for the additional checks and balances afforded by appeals mechanisms is supported by data from the International Labour Organization Administrative Tribunal, which has decided in favour of complainants in 66 per cent of retaliation-related cases - all emanating from organizations that lack an independent appeals mechanism, said the Inspectors.

The fourth criterion on preliminary review, recording and investigation of misconduct/wrongdoing and retaliation reports is used to assess whether, in the written policy, the systems for recording both misconduct/wrongdoing and retaliation are explicit, proper procedures for handling and investigating cases are identified and time-frames are transparent.

Only one organization fully met all the indicators, with most falling short in systematically recording reports, having explicit timelines for the preliminary review and investigation of misconduct reports and having provisions for external referral of misconduct investigations.

The fifth criterion on general clarity of policy covers the fundamentals of a well-written policy and is used to assess whether the policy is clear, easy to understand, reviewed and updated over time and accessible.

According to the Inspectors, while all policies contain a duty to report an d contain clear definitions of relevant terms, most organizations fail to fully meet the requirements under the other indicators, including establishing mechanisms for reviewing and revising the policy, having the policy contained in a single document that is easy to locate on the organization's public web page and making use of examples to aid staff in understanding when and how the policy applies.

In their conclusions from the written policy review, the Inspectors said that while some of the protection against retaliation policies reviewed are stronger in relation to some criteria than to others, the comprehensive review of these policies against all 22 indicators revealed that not a single organization's policy fully met the requirements of all five best practices criteria.

Only 58.3 per cent of the 22 indicators corresponding to the five best practices criteria were rated as fully met.

The Inspectors noted that heads of ethics offices, heads of oversight offices and ombudsmen/mediators are all functions that play a key role in supporting the implementation of whistle-blower policies in JIU participating organizations.

Their independence assures staff that allegations will be reviewed without undue political and hierarchical pressure, influence or interference.

The best practices criteria for protection against retaliation policies are predicated on the independence of these functions.

Findings from interviews and a validation exercise that reviewed the independence of these functions showed that many organizations have not implemented JIU recommendations made in previous reports.

The aforementioned functions have two common indicators for independence: employment term limits and the production of an annual report.

To date, there are no term limits in place for 45 per cent of ethics officers, more than 50 per cent of heads of oversight and less than 20 per cent of ombudsmen/mediators.

Presently, only two organizations meet all independence criteria for the three functions.

"Independence is an operational and structural requirement to support the implementation of whistleblower policies," said the Inspectors.

Staff rely on the independence of these three functions when reporting sensitive information that can carry significant reputational and operational risks for an organization if unreported - believing that they will be protected if they do so.

The Inspectors said the three functions, in turn, rely on both the executive head and the legislative body to ensure their independence.

"The dual functioning of ombudsmen or ethics or oversight officers could potentially leave staff vulnerable and put the functions at risk of losing credibility and staff confidence," they also pointed out.

The Inspectors called for re-examinations of the dual functioning of these particular positions to ensure their independence and integrity.

MISCONDUCT AND WRONGDOING COMPLAINTS

According to the report, across the United Nations system, misconduct and wrongdoing are routinely reported, most often to an immediate supervisor.

Staff at various levels noted that it was their "duty to report" and that most reports are handled within a normal chain of command.

Routine reporting typically changes to "whistle-blowing" on the basis of two factors: (a) when it involves either a superior or senior-level personnel; or (b) when such reporting is embarrassing to senior management and/or damaging to an organization's reputation.

Between 2012 and 2016, a total of 10,413 misconduct and wrongdoing cases were reported to the oversight offices of the 23 United Nations system organizations that provided data.

Seven organizations could not provide data on the investigations due to variations in their data categorization mechanisms.

The Inspectors noted the need for oversight offices to pay particular attention to the management of data on misconduct/wrongdoing cases, in order to appropriately track and report on them and to identify trends and systemic issues.

Moreover, the number of misconduct reports in any given organization is likely to be higher than the figures provided by the oversight offices, given that some oversight offices are mandated only to handle reports of some, but not all, forms of misconduct.

Through interviews and the global staff survey, the Inspectors found that, while personnel understood what constituted misconduct/wrongdoing, they lacked clarity on to whom to report it, particularly in organizations that do not have a central unit designated to receive such reports.

Where multiple channels of reporting are present, without a clear explanation of how their roles differ, the effect is confusion among staff, and the risk is that staff may choose not to report.

The Inspectors said that organizations must clearly stipulate where, how and to whom to report all types of misconduct/wrongdoing, and they must also educate staff on the roles of the different entities entrusted to receive misconduct/wrongdoing reports.

The lack of understanding of reporting mechanisms is corroborated by the global staff survey, with only 56.5 per cent of respondents fully agreeing that they knew to whom to report misconduct/wrongdoing.

The Inspectors also found that in the responses to the global staff survey, 45 per cent of respondents reported that they had witnessed misconduct/wrongdoing in the past five years.

Of those who claimed to have witnessed misconduct/wrongdoing, less than half said that they had reported it.

When disaggregating the responses of staff by the size of the organization, about 50 per cent of those who had witnessed misconduct/wrongdoing in large organizations had reported it, compared with only 39.3 per cent in medium-sized organizations and 41.2 per cent in small organizations.

Personnel with continuing or permanent appointments reported misconduct at a higher rate (51.3 per cent) than those with fixed-term contracts (47.4 per cent) or temporary appointments (39.3 per cent).

The global staff survey respondents who had reported misconduct/wrongdoing indicated that they had reported it to their immediate supervisors by a significantly higher percentage compared with reports made to middle management, internal oversight or other internal channels.

Very few had reported to external entities (e.g., media, Member States or law enforcement), and less than 5 per cent had reported anonymously.

Regarding their satisfaction with the handling of their reports of misconduct/wrongdoing, respondents expressed considerable dissatisfaction with all internal reporting mechanisms.

The considerable dissatisfaction with how reports of misconduct/wrongdoing are handled could reflect several factors, including: a lack of training among supervisors and managers who are most likely to receive such a report; a misalignment between what the written policy conveys and how it is implemented in practice; and a failure to fulfil the basic duty of care to support the complainant and proactively prevent retaliation.

Protection against retaliation policies should identify mechanisms and resources for supporting staff through the difficult process of reporting misconduct/wrongdoing, said the Inspectors.

"Procedures should focus on proactively preventing retaliation, particularly in cases in which retaliation is likely to occur due to power dynamics or office size, and/or in potentially high-profile cases such as those involving senior managers, major fraud or corruption."

RETALIATION COMPLAINTS

According to the Inspectors, retaliation may occur either in response to the reporting of misconduct/wrongdoing or to staff participating in or cooperating with a duly authorized audit or investigation. These are referred to in some policies as "protected activities".

The process for handling retaliation cases differs from that followed in misconduct/wrongdoing cases, as retaliation complaints are formally centralized in the ethics office in all organizations except FAO and the International Atomic Energy Agency, they said.

Once a complaint has been received, the ethics office undertakes a preliminary assessment (or prima facie review), typically only on the basis of the information received, to determine whether there is sufficient evidence to constitute a reasonable belief that retaliation has occurred. If a prima facie case is determined, the matter is then referred for investigation.

Once an investigation is complete, and if retaliation is confirmed, the final decision on protection and redress measures for the complainant and on administrative actions against the alleged retaliator lies with the executive head or his or her designated delegate.

Any administrative actions can typically be appealed before an organization's internal appeals board, and then, more formally, in the tribunals.

According to the JIU report, between 2012 and 2016, a total of 278 retaliation cases were formally reported to the designated channels in 18 organizations, with accommodations being made for complainants in 34 cases.

A total of 62 prima facie cases of retaliation were determined and forwarded for investigation. Retaliation was substantiated in only 20 cases.

While it cannot be validated with comparable data from other international organizations that fall outside the remit of JIU, the numbers are concerning to the Inspectors when viewed in the context of the United Nations system organizations, which together employ more than 150,000 personnel.

The data may point to possible deficiencies in the clarity of policies, the adequacy of processes and procedures in handling retaliation reports and/or the competency of staff functions that deal with retaliation reports, they said.

The global staff survey responses showed that 12.8 per cent of all personnel who claimed to have reported misconduct/wrongdoing or to have participated in an oversight activity within the past five years experienced retaliation for doing so. Of those who claimed to have experienced retaliation, only 40 per cent reported it.

When disaggregating the responses on the basis of the size of the organization, staff from large organizations reported retaliation at a higher rate compared with staff from small and medium-sized organizations.

While all whistle-blower policies identify a single entity for the formal reporting of retaliation, few of the global staff survey respondents who reported retaliation indicated that they had actually used those channels, with only about a quarter of staff reporting to an ethics office and about a fifth reporting to an internal oversight office.

Most preferred to seek a resolution through the normal chain of command by reporting retaliation to their immediate supervisor, middle management and/ or a human resources office.

In terms of levels of satisfaction with the handling of reports of retaliation, global staff survey respondents expressed considerable dissatisfaction with all internal reporting mechanisms, said the Inspectors.

The two formal reporting channels, ethics offices and oversight offices, both received a satisfaction rating of only 29 per cent.

Compared with satisfaction with the handling of misconduct/wrongdoing reports, satisfaction among global staff survey respondents with the handling of retaliation reports dropped for each internal channel, and by as much as 11 percentage points for the executive head.

The Inspectors also said under-reporting of both misconduct/wrongdoing and retaliation was widely validated in interviews with staff from across the United Nations system organizations, including ethics and oversight officers, ombudsmen, human resource professionals, managers and staff associations.

The perception that no action had been taken in the past, for those specifically reporting retaliation, weighed heavily on the staff members' decisions not to report.

The results of the global staff survey showed that the main reasons for not reporting provided by respondents who claimed to have witnessed misconduct/wrongdoing can be divided into two categories: (a) personal fears or risks of reporting; and (b) lack of confidence in the systems and functions in place.

According to global staff survey responses, the highest levels of under-reporting of both misconduct/wrongdoing and retaliation come from non-staff categories, namely consultants, contractors, interns, junior professional officers and United Nations Volunteers.

Across the system, approximately 45 per cent of the workforce is categorized as non-staff, and that number is likely to increase due to budgeting and fundi ng trends, the Inspectors said.

The Inspectors said that small and medium-sized organizations, overall, have less experience with implementing protection against retaliation policies and procedures, and staff confidence in how reports will be handled is consequently lower than in larger organizations.

They called on the legislative bodies of the 20 small and medium-sized United Nations system organizations to take a more active role in the development and review of comprehensive accountability frameworks for these organizations.

This active role should include how they will handle allegations of misconduct/wrongdoing and retaliation against the executive head, senior management and officers in oversight and ethics functions.

Under-reporting of misconduct, wrongdoing and retaliation, at current levels across the United Nations system organizations, is of considerable concern and points to weaknesses and deficiencies in: policies that are unclear or do not provide adequate protections; key functions that are ineffective and/or lac k independence; procedures that are vague or protracted; processes that take too long or are overly bureaucratic; and, especially, leadership that has not adequately developed and supported a culture of accountability, or "tone at the top".

The general consensus among staff members interviewed is that, without a demonstrable commitment from the executive head, any changes to an accountability framework would simply not be possible, as "tone at the top" is crucial to an organization's accountability and integrity.

"This commitment must include making available appropriate channels or mechanisms for staff members to express disagreement in a respectful manner."

The Inspectors also noted that the channels or mechanisms available to staff to express their disagreement or offer a dissenting view without fear of retaliation is highly pertinent to the present review.

Respectful dissent, as it is commonly known, refers to the right to have and express an unpopular opinion or a perspective that may not conform with the established policies or positions of the organization.

Nearly one quarter of the personnel cases JIU studied were, in effect, respectful dissent cases, or had at least started out that way.

These cases were rooted in policy or procedural disagreements with middle management or senior leaders that could have had, or did have, serious implications.

All complainants experienced severe retaliation, and most cases included disclosures to external entities (Member States and/or the media), while half ended in resignations of the complainant and subsequent litigation.

The Inspectors are of the view that, in order to foster healthy dialogue and respectful dissent, the executive heads of the United Nations system organizations should create appropriate forums and mechanisms within their organizations to elicit a wide variety of views on policies and procedures from staff at all levels, including those in the field.

RECOMMENDATIONS

The JIU report makes nine recommendations to be implemented from 2019 to 2020 by the executive heads of the UN system organisations and two recommendations addressed to legislative bodies.

Recommendation 1: Legislative bodies should adopt measures by 2020 to ensure that all policies related to misconduct/wrongdoing and retaliation specify appropriate channels and modalities, such as independent oversight committees, for reporting and investigating allegations against the executive head of t he organization, as well as against any other functions that may entail a
potential conflict of interest in the handling of such issues.

Recommendation 2: In United Nations system organizations that do not have an external and independent mechanism for appeals when a prima facie case of retaliation is not determined, the executive head should instruct the relevant office(s) to develop, by 2020, appropriate options to address this deficiency for his or her timely consideration, and to outline any agreed-upon mechanisms and processes in updates to protection against retaliation policies.

Recommendation 3: Executive heads of United Nations system organizations should update their relevant whistle-blower policies by 2020 to address shortcomings and gaps identified in the JIU best practices ratings.

Recommendation 4: By 2020, the legislative bodies of the United Nations system organizations should request executive heads to ensure that the independence of the head of ethics, head of oversight and ombudsman/ mediator functions is clearly defined, in accordance with recommendations contained in JIU report s (JIU/REP/2006/2, JIU/REP/2010/3, JIU/REP/2011/7, JIU/REP/2015/6 and JIU/REP/2016/8), and that these functions report periodically to the legislative body.

Recommendation 5: By the end of 2019, executive heads of United Nations system organizations should develop comprehensive communications tools for all personnel on what, how, where and to whom to report misconduct/wrongdoing, including harassment and retaliation, in all the working languages of the organization.

Recommendation 6: Executive heads of United Nations system organizations should develop by 2020 standard operating procedures for proactively protecting those who report misconduct/wrongdoing from retaliation, which should include undertaking relevant risk assessments and clearly identifying available support mechanisms and resources.

Recommendation 7: Executive heads of United Nations system organizations should develop standard operating procedures by 2020 for handling retaliation cases, with specific checklists and protocols for investigation, support services and communication.

Recommendation 8: Executive heads of United Nations system organizations should ensure that, by 2020, anonymous channels to report misconduct/wrongdoing are: (a) developed and operational; (b) available in all the working languages of the organization; (c) accessible to all personnel, vendors and beneficiaries; (d) reflected in their relevant policies; and (e) widely communicated.

Recommendation 9: By the end of 2019, executive heads of United Nations system organizations should ensure the public posting of an annual report, with all due consideration to confidentiality, on misconduct/wrongdoing and retaliation cases. The report should specifically include the allegations, findings and outcomes, including administrative actions taken.

Recommendation 10: By the end of 2019, executive heads of United Nations system organizations should ensure that all supervisors and managers are required to complete specific training on whistleblowing policies and on how to appropriately respond to and handle misconduct/wrongdoing and retaliation reports.

Recommendation 11: By 2020, executive heads of United Nations system organizations should conduct global staff surveys on a biennial basis, in order to gauge staff views on "tone at the top" issues, accountability and ethics-related topics and to develop a comprehensive action plan to address the issues identified.

(The JIU report can be found at: https://www.unjiu.org/sites/www.unjiu.org/files/jiu_rep_2018_4_english.pdf )