After BC expands protections, employment law expert explains difference between policy success and failure
Confidentiality and protection from reprisal are the two key components of an effective whistleblower policy, according to an employment law expert. These considerations go hand in hand with ensuring reports are acted upon promptly and transparently, which can prevent them from escalating.
Earlier this month, British Columbia expanded whistleblower protections to research universities and WorkSafeBC, highlighting the topic of whistleblower policies and the need for employers to review them.
BC’s phased approach was a deliberate effort to allow organizations time to develop the resources and infrastructure necessary to handle disclosures effectively, said Aleksandra Pressey, a lawyer and workplace investigator at Williams HR Law.
The expansion covers over 300,000 employees across more than 200 organizations, including BC's six research universities and WorkSafe BC.
"The focus is a serious act or omission that's an offense under an enactment of BC or Canada – acts or omissions that create substantial and specific danger to life, health, safety, or the environment,” she said. “Then there's the caveat for other dangers inherent in the performance of employees' duties or functions."
The B.C. legislation also targets serious misuse of public funds, gross mismanagement, and knowingly directing or counseling a person to commit wrongdoing. Employees now have a clearer avenue to report concerns, either internally or to the Office of the Ombudsperson.
Challenges with whistleblower policies, however, often arise in balancing confidentiality with procedural fairness, particularly in sensitive cases such as harassment or discrimination, according to Pressey.
"The whistleblower's identity is typically protected, but there may very well be circumstances where the whistleblower's identity will need to be disclosed," Pressey said. "It makes it sometimes pretty difficult to investigate because you're not necessarily able to give a respondent the sufficient information they need to make the process procedurally fair."
The absence of clear and efficient whistleblower policies can lead to significant risks. Beyond external reporting, unclear policies can also lead to duplication of efforts or inadequate responses to complaints.
"If employees don't find a good internal mechanism to make complaints, they're going to go elsewhere," Pressey said. "Not clearly delineating what processes should be followed for what things can lead to either duplication of efforts. You might get this whistleblower report, but there's not too much that you can substantively do with it because you haven't taken all the steps necessary to make sure that you have the information that you need."
When faced with whistleblower complaints lacking sufficient detail, organizations must tread carefully.
"If you have serious but vague allegations, you have to determine what is it that we can determine, at least on a preliminary basis, and how far we need to go with this process," Pressey said.
This often involves engaging experienced investigators who can navigate the complexities of such complaints.
"You start with a bit of the behind-the-scenes process," she said. "You try to get additional information from the whistleblower, get those easily accessible records or those trusted sources within the organization."
Organizations must approach the process in good faith, even when information is limited.
"You don't want to be making an assumption that the whistleblower is somehow lying or not being truthful just because they're not able to provide you with all the information that you would ideally need," Pressey said.
The BC legislation’s phased implementation could inspire other provinces to follow suit, though there are some variations in existing frameworks across Canada.
"It’s very common that we see legislation progress as trends," she said. "We saw that, for example, with harassment protections being brought into the occupational health and safety legislation in Ontario."
Pressey also highlighted how public sector changes could influence private sector practices.
"When things happen in the public sector as well, sometimes the private sector takes note," Pressey said. "If you're getting a lot of discussion in the media about whistleblower policies and procedures, you may find that more employees are made aware that these are things that exist and may choose to follow those routes."
Ultimately, the expansion of whistleblower protections in BC serves as a reminder for organizations to evaluate their own policies.
"Sometimes it's a good time to take stock of what your own internal complaints and reporting policies are and just make sure that they're well-socialized, that people know how they can bring concerns forward," she said.
