227. The protection of whistle-blowers against retaliation is vital to build and maintain long-term confidence among staff to report fraud and to create and maintain a speak-up culture. In order to encourage whistle- blowers to report, organizations must have provisions and procedures to address retaliation complaints and remedy proven retaliation. While the whistle-blower policies of the United Nations system may include such provisions, their success depends on how these provisions are effectively implemented and the trust of staff at large in the policies for protection against retaliation.
228. The JIU fraud survey results revealed that more than half of the respondents are not certain they would be protected against retaliation if they reported fraud. The above responses show that much needs to be done to promote and inform staff about the organization’s whistle-blower and anti-retaliation mechanisms.
Figure 6: Protection against retaliation
Source: JIU fraud survey.
229. Fear of retaliation – whether substantiated or perceived – was also brought up by interviewees as a matter of serious concern. Integrity and ethics surveys and reports, conducted internally by some United
119The investigations function in the United Nations system (JIU/REP/2011/7), paragraph 36. 120See, for example, UNHCR, “Service Guide for Syrian Refugees valid as of January 2015”.
53% 47%
Disagree, partially disagree, don't know, neither
Agree, partially agree
Nations system organizations, indicate that whistle-blower reporting and protection against retaliation rank high among problem areas reported by staff. For instance, in one organization, the ethics office noted that potential complainants were aware of the policies and mechanisms, but were reluctant to use them because of the fear of reprisal. This is in line with responses received in the context of a 2012 global staff survey of the same organization that reflected “the fears of retaliation and the lack of confidence that those who do report misconduct will be protected from retaliation could hold staff back from speaking up and reporting misconduct in the first place”. In another organization, the oversight office and the ethics office indicated in their reports that “feedback received during ethics awareness workshops indicate that staff members remain concerned about the possibility of workplace retaliation”. In yet another organization, the ethics office report states that “staff members raised their fear or frustration to speak up”, despite the organization’s specific whistle-blower protection policy. The ethics office report of yet another organization stated that “it is noteworthy that there is an increasing number of inquiries that are reported collectively, by a group of employees, or by unknown or anonymous sources”.
230. A Special Rapporteur report also found that existing provisions for the protection of whistle-blowers contain certain loopholes and exceptions in their coverage in United Nations system organizations.121In many cases, the mechanisms in place, while well-intentioned, lack real independence and effectiveness. As long as internal reporting channels require implementing actions by multiple individuals in the organization’s management, they will fail to enjoy the credibility that comes with independent review.122This has potential deterrent effects in that those with knowledge of fraud or presumed fraud may not be as forthcoming. Additionally, those that come forward may find themselves retaliated against without adequate recourse. 231. Ethics offices throughout the United Nations system face the challenge of “weeding out” actual cases from those related to workplace and performance issues. Several interviewees also pointed out that sometimes retaliation claims are used under false pretences to prolong employment. The Ethics Office of the United Nations, since its 10 years in existence (2006-2015), following prima facie review and subsequent investigation by OIOS, made a final determination of retaliation in only four cases.123 According to the Secretariat’s Ethics Office, the anti-retaliation policy is frequently “utilized as a grievance and labour dispute mechanism”,124which reflects the experience of other ethics offices within the United Nations system. At the time of this review, the Secretariat was revising its anti-retaliation policy, in accordance with emerging global best practices, aiming to refocus on protecting whistle-blowers who reported allegations or cooperated with investigations of wrongdoing that posed substantial harm to the interests, operations or governance of the organization. It is expected that the new policy would limit the intake of unrelated reports.
232. As discussed, good practice suggests that, in order to give credibility to the claim of protecting the anonymity or confidentiality of whistle-blowers, the information that whistle-blowers provide must be treated sensitively and a number of safeguards put in place. Within the United Nations system, such measures include: securing premises for the office handling whistle-blower reports; special access restrictions for records (locked cabinets etc.), including special provisions for electronic files, for example separate server or electronic firewalls. Confidentiality requirements for all persons with access to sensitive information are necessary. The requirement to keep information confidential should not only extend to staff handling whistle- blower cases, but also to other persons with access to privileged information, such as information technology personnel, witnesses etc.125
233. Awarding interim relief – measures aimed to temporarily avert further harm – to whistle-blowers who fear retaliation is a good practice implemented by the United Nations Secretariat, UNDP, UNHCR, UNWTO, UNESCO, FAO, WFP and WHO. Such measures could include being transferred to a different department or being assigning a different supervisor. A number of interviewees indicated that awarding interim relief
121 See, Special Rapporteur on the promotion and the protection of the right to freedom of opinion and expression
(A/70/361), paras. 51-69.
122Ibid., para. 55. 123
Reports on the activities of the Ethics Office, A/66/319, A/67/306, A/68/348, A/69/332 and A/70/307.
124Ethics Office of the United Nations Secretariat, 2015. 125Please see also section A of the present chapter.
measures raised significant administrative difficulties in practice, which need to be addressed with urgency by the management to ensure efficient implementation of anti-retaliation policies. Some interviewees also strongly suggested that interim relief measures should only be taken with the consent of the whistle-blower so that they are not used for disguised retaliatory purposes.
234. While most organizations have in place provisions for the protection of staff members, the same is not always the case for non-staff engaged by the United Nations system, such as consultants, special services agreement holders, United Nations volunteers, interns or seconded personnel. A number of organizations have established specific provisions to extend the protection against retaliation measures in principle to persons in the non-staff category, who have a contractual link to the organization. For instance UNDP, WHO, UNESCO, IMO and UNRWA explicitly cover non-staff members, such as volunteers, interns, contractors and consultants under their anti-retaliation policies. The United Nations Secretariat in its policy (ST/SGB/2005/21) expressly extends protection against retaliation not only to staff members who report misconduct or otherwise engage in an activity protected under the policy, but also to certain categories of non-staff members, namely interns and United Nations volunteers.
235. It is recommended that United Nations system organizations extend and apply appropriate whistle-blower protection measures against retaliation, not only to staff members but also to various non-staff categories, including personal services contractors, volunteers and interns, as long as there is a contractual link with such individuals.
236. Absent from many anti-retaliation frameworks by United Nations organizations reviewed are provisions to mitigate conflicts of interests arising when wrongdoing is reported to have taken place by either an ethics office or an investigation function. For example, during 2010/2011 the United Nations Secretariat’s Ethics Office faced a case of prima facie retaliation by the investigation function, which was addressed on an ad hoc basis by establishing an alternative investigation panel. Some organizations have addressed this issue by amending their policies to that effect that for cases of potential conflict of interest, the head of the ethics office can refer the review to be done by an alternative reviewing body.
237. A number of international bodies have established policies that are considered good practices in the protection of whistle-blowers against retaliation.126 While some of these practices are already followed by United Nations system organizations, there is room for a thorough review of such policies to see if and how they can fit in the current business environment and the needs of each organization. For example, a good practice is to provide comprehensive coverage by whistle-blower policies, including for “spillover retaliation” that affects persons presumed to be whistle-blowers. Policies in line with good practices also provide for a guarantee of the confidentiality of the whistle-blower, place the “burden of proof” to assess potential retaliatory action on the employer once a prima facie case has been established and grant access to a formal justice systems. Furthermore, such policies provide for feedback to be given to whistle-blowers on the outcomes of a report and provide for specific penalties and/or disciplinary action to be taken against those that engaged in retaliation.