An employment lawyer's thoughts on ethics online reportingPosted in : Seamus Says - Employment Law Discussion on 5 October 2018
Q. What are your thoughts on ethics online reporting system, whereby employees can report, for example, harassment anonymously?
Seamus: Well, this is, again, interesting. We don't know what the circumstances are for certain individuals in terms of why they wouldn't want to bring a grievance. Maybe they feel they'll be putting their head above the parapet. Maybe they feel that there would be repercussions for them if they were to highlight things. I mean, whistleblowing, we have our public interest disclosure order in 1996, which is this legislation which covers off on it.
Often, if you need to be careful in terms of whistleblowing because often, where you have a client that says, "No, I blew the whistle," and when you actually take them through the terms of the legislation, it can be difficult to define. There are all those things like good faith and everything else when it comes to that.
A simple way for an employee, maybe, to bring something to the attention of their employer without putting their head above the parapet can be through reporting it anonymously. I'm not a huge fan—if I'm giving advice to employers, I'm not a huge fan of the anonymous complaint or anonymous notifications that come through. They're difficult for an employer to handle and it can be very difficult to get to grips with what the complaint is about. You have nobody to go back to question and ask about, "What did you mean about that?"
You have nobody to go back and report your outcome to either whenever you get it, but I'm not saying they're not helpful. Certainly, I've had a number of circumstances where matters have been brought anonymously. They've been investigated by the company and from the company's point of view, they're very thankful that it was brought forward because it has identified problems and issues.
Scott: It can be difficult because you don't know the motivation of the individual. You could be doing it out of revenge because somebody slept with your spouse and therefore, "I'm going get them." You have no idea because it's anonymous.
Seamus: Definitely, there's that attitude that happens. I think for an employee, you really have to think carefully about it. Is an anonymous complaint this way or the reporting of it online? Is it really going to address your concerns? Is it really going to be worthwhile for you to put that in? You could call it a lot of things in terms of—there are good reasons why so many wouldn't want to be putting their name forward in terms of it, but are you going to get the desired result out of it? Is it worthwhile bringing it? If it's something to say, "Well, I've got it off my chest," it's probably not the way to do it.
Scott: Just somebody on the chat box pointed out it's a global reporting system. There are whistleblowing organisations. I can't remember what PCAW (Public Concern at Work) has changed its name to. There are local ones as well.
Seamus: There are.
Scott: If there's an individual and you've got an issue—if there's a crime going on in an organisation, it's a bad thing and it's a good thing for an employee to raise it to get rid of that criminality, if you like, but it may be best to take advice from the union, from a lawyer, from one of those organisations that helps whistleblowing before they then put in their complaint or do something.
It's better maybe to get advice—from an employee's point of view, if they're dismissed, there's no limit on the compensation, but you're still out of the job and you've got to win your case. They are very complex because you've got to show some causal effect here that you lost your job because you were raising this whistleblowing because of it.
Seamus: That's it. The other concern I have with it is it doesn't resolve the underlying issues. It creates that phantom zone of mistrust. The employer doesn't know who's made the complaint. The employee is not satisfied that their complaint has been addressed and dealt with and that's a waste of time. It festers a toxicity to it that I don't think is helpful.
But saying that, look, we all know the various types of websites you can go on, even if you're looking for employment and you come across a company and you Google it and you see the websites with the various types of reporting that is done internally by its employees onto these websites and you think, "Is this a good company to go and work for or not?" That has to have a huge impact for the employer in terms of those.
Scott: You don't have control over that anyway.
Seamus: No. Absolutely.
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