Switzerland could now lead the world on whistleblowing rules

The Swiss government was on track to pass whistleblowing legislation that could have harmed whistleblowers, however on 5 May 2015 something extraordinary occurred.  Dr. Yasmine Motarjemi and Alison Glick explain how Switzerland now has a chance to lead the world on the rules surrounding whistleblowing.

Swiss-parliament-in-Bern

Swiss-parliament-in-Bern

On 5 May 2015 the Swiss National Council referred the draft whistleblowing law back to the Federal Council for revision, marking a small victory for those who understand the importance of protecting those who speak up to protect us all.

In Switzerland in 2003 the first motion to protect whistleblowers was put forward and since 2008, a draft law has been winding its way through the various consultative processes of the Swiss legislature. While this long gestation period underscores some of the complexity of the subject, it also highlights the difficulty legislators face when they try to reconcile the interests of employers and the rights employees without, perhaps, focusing as much as they should on the primary reason for such a law – protecting the public interest. The harm that such laws seek to prevent (and reveal) range from risks to health and safety of consumers or patients, environmental damage as well as fraud and corruption. Certainly a whistleblowing law needs to take into account the legitimate reputational concerns of employers, but it must primarily offer real protection to whistleblowers who speak up about the risk of harm or wrongdoing in the public interest.

In November 2013, the Federal Council proposed a 3-step procedure that would protect employees who report irregularities to their employer first; and only allowed reports to the authorities if there was no reporting system in place or the employer’s response was inadequate. Any public disclosure would only be protected if the authorities failed to respond. Legal observers stated that the draft law could actually act as a “de facto ban” against public disclosures.

Whistle-blowing-rules-switzerland

When the Council of States approved the proposals with only minor amendments late last year, most assumed the same would happen on 5 May 2015. Instead, something extraordinary occurred: those who had voiced serious concerns to parliamentarians were told that the National Council had returned the proposed law for more work, declaring it too complex and impractical. Only the UDC (Union Démocratique du Centre) supported it. So while it remains to be seen whether the detailed concerns of civil society will be taken into account, the Swiss government has for the time being avoided the mistake other governments have made in enacting whistleblowing laws – passing legislation that actually harms rather than helps whistleblowers.

Numerous commentators have pointed out the flaws of the proposed law and its implications for in Switzerland and beyond its borders, given the number of multi-national companies based in the country. Eric Martin, President of Transparency International Switzerland harshly criticized the draft and stated it is “better not to have a law than to have a bad law.”[1] A newly formed body, Ethics and Compliance Switzerland (ECS) – whose members include several major multinational corporations such as Nestlé, Syngenta and Bayer – also criticized the proposal before the debate and recommended stronger protections for whistleblowers who report in good faith. [2]

The Government Accountability Project – a founding member of WIN, an international network of organisations defending whistleblowers around the world – commented on the proposed law last October[3] and days before the National Council session Dr. Motarjemi wrote an open letter to Swiss parliamentarians. Drawing on her personal experience as a whistleblower and the Council of Europe’s Recommendation on the Protection of Whistleblowers, Dr. Motarjemi highlighted some key problems with the proposals. She pointed out that the law failed to ensure that it is not a crime to report a crime in Switzerland; a situation that could be rectified if the law made it clear that employees who speak up in the public interest cannot be sued civilly or criminally for their disclosure. Nor did the proposals include sanctions against employers who fail to correct the harm or wrongdoing reported or who retaliate against whistleblowers. In cases where the authorities do not adequately respond, there is no protection for those who reveal the problem publicly. The failure to ensure there is public accountability runs counter to the very purpose of whistleblower protection and democratic principles; and for employees who can suffer severely – professionally and personally – for doing the right thing, being able to explain their actions publicly is a matter of self-defense and redemption.

It is clear that it is in the public interest to ensure whistleblowers can report their disclosures directly to the authorities and to the public. By focusing on a cumbersome and employer-dependent “reporting system,” the proposed law not only undermined the possibility of serious investigations into reported wrongdoing, it facilitated the potential retaliation it was meant to guard against.

So perhaps the extensive debate that the draft law has spawned in Switzerland is a blessing in disguise and certainly the active participation of civil society demonstrates the strength of Swiss democracy. The debate has also highlighted the sacrifice whistleblowers make for their fellow citizens. Anna Myers, who coordinates WIN points out, “The discussions in Switzerland remind us all of the importance of strong civil society engagement when devising whistleblower laws and defending the public interest. In a globalized economy, a Swiss law that puts the public interest at its heart will not only serve the country well, it will protect the interests of citizens beyond its borders.”

Baby food

It is difficult to find anyone who sets out to be a whistleblower — most simply think they are doing their job and reporting a problem. Yet imagine if your reward for reporting dangerous baby food was a termination notice, and no prospect of finding a future job. The Swiss public should make it clear to the Federal Council that protecting the truth-tellers among us should be the first priority of a whistleblower law. Let’s hope our public servants will act with the same motivation that whistleblowers do: in the public interest.

References:
[1] Let Temps 5 May 2015. Lanceurs d’alerte: Berne propose une bien mauvaise loi.
[2] ECS. Whitepaper on Whistleblower legislation in Switzerland, Ethics Compliance Switzerland, Berne, Switzerland
[3] Switzerland to silence whistle-blowers. LeNews 9 October 2014.

By Dr. Yasmine Motarjemi and Alison Glick

Dr Yasmine Motarjemi is a former senior scientist at the Food Safety Programme, World Health Organisation, and former Corporate Food Safety Manager with Nestle, Switzerland.

Alison Glick is WIN Coordinator at the Government Accountability Project, Washington, DC, United States of America

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