The following five points are FAIR's 'gold standard' for judging any whistleblower legislation. Meeting all these in full will ensure that the legislation can be made to work effectively; failing to meet any of these will create loopholes that may render the entire system useless.
1. Full Free Speech Rights
Whistleblowers must be able to blow the whistle on wrongdoing anywhere, anytime, and to any audience unless release of the information is specifically prohibited by statute, in which case disclosure must still be permitted to law enforcement and/or to Parliament.
2. Right To Disclose All Illegality and Misconduct
Disclosure must extend to any illegality, gross waste, gross mismanagement, abuse of authority, substantial and specific danger to public health or safety, as well as the contravention of any workplace policy, regulation, rule, professional statement, directive, or code of conduct.
3. No Harassment Of Any Kind
Any harassment must be banned, whether active such as termination or passive such as refusal to promote, taken because of the exercise of a right must be banned.
4. Forum For Adjudication, With Realistic Burden Of Proof And Appropriate Remedies
Whistleblowers must have access to an effective judicial process including access to our courts of justice.
Considering that the whistleblowing may expose matters of substantial public interest that are highly embarrassing for government, the whistleblower must have access to our courts of law as the forum that is most independent and competent to serve as ultimate adjudicator. The creation of any special-purpose judicial process for whistleblowers must be in addition to this right of access to the courts, not instead of.
Whistleblowers require also realistic burdens of proof; the law must therefore provide a reverse onus whereby once the whistleblower has shown that the whistleblowing was a contributing factor in the action taken against them (ie., a short time frame between the whistleblowing and the retaliation), the burden shifts to the employer to show by clear and convincing evidence that the employer had other legitimate reasons for taking the action.
Finally, if the whistleblower prevails, the relief must be comprehensive to cover all direct, indirect, and future consequences of the reprisal. This may mean relocation, medical bills, and compensation in lieu of salary. Compensatory and punitive damages must be available to "make whole" the whistleblower from the wounds of retaliation.
5. Mandatory Corrective Action
Employees remain silent for two key reasons: one, they have no faith that anything will change; and two, fear of reprisal. In order to promote true accountability, persons who engage in harassment against an employee must be held personally responsible.
As well, ministers must be required to take remedial action on the wrongdoing.
New Developments
Since FAIR developed these five principles, Transparency International (TI) has developed a more elaborate list which represents an international consensus regarding whistleblower legislation best practices. FAIR participated in this major project, along with whistleblowing experts from many countries, and the result is a comprehensive and authoritative document that we wholeheartedly endorse.
FAIR's 'Five Essentials' remains an excellent brief summary of the requirements for effective whistleblower protection.
Transparency International Whistleblowing Principles
FAIR's report on the workshop where the TI principles were developed