This summer, the Director General of the World Intellectual Property Organization (WIPO), Francis Gurry, is circulating the draft of a new whistleblower protection policy for the consideration of WIPO Member States.
Anyone who follows findings of misconduct at WIPO will appreciate the irony of this. First, Gurry, himself has been the subject of numerous reports of misconduct from WIPO whistleblowers, including Miranda Brown, Wei Lei and members of the WIPO Staff Council of the Staff Association. All of these staff members suffered retaliation.
Secondly, the new policy names Director General Gurry as the official responsible for the entire process of protecting whistleblowers from retaliation.
These are the principal problems with the draft policy:
i) the Ethics Officer, who decides whether a report of misconduct is a protected activity and whether retaliation has occurred, is not independent; he or she is hired and evaluated by WIPO management, i.e., Francis Gurry.
ii) in order to qualify for protection under the draft policy, the whistleblower must make a report of retaliation based on “reasonable and demonstrable grounds.”
iii) the draft makes no mention of how the pending cases of WIPO whistleblowers will be resolved. It’s as if this policy appeared without a history of reprisal at WIPO. But there is history, it involves Gurry’s retaliation, and it is very ugly.
These features of the draft policy do not meet generally-accepted international best practice standards. Such standards do not place the authority for redress and vindication of a whistleblower in the hands of another staff member with a conflict of interest – as Gurry currently has.
Nor do best practices require the whistleblower to make claims based on ‘demonstrable’ grounds. Whistleblowers are not investigators, and best-practice policies stipulate only that they have a ‘reasonable belief’ that what they are saying is true. The reasonable-belief standard is met if a third party, viewing the same set of facts, would reach the same conclusion. Including the term ”demonstrable grounds” as a prerequisite for protection introduces a subjective and impossible standard for a whistleblower to meet in order to qualify for protection from retaliation. To meet the ‘demonstrable’ standard, a whistleblower would be obliged to produce irrefutable evidence of misconduct. But whistleblowers cannot compel witnesses to testify or subpoena files. In a secretive and non-transparent workplace like WIPO, securing conclusive evidence of wrongdoing may be virtually impossible.
These features of the draft make it worthless. In sum, the policy establishes a potentially compromised Ethics Officer, an unrealistic standard of credibility for the whistleblower’s allegations and names the Retaliator General as the ultimate decision-maker in whistleblower cases.
In addition, it does not include any provision for accountability in pending cases.
Addressing these problems is an easy fix: WIPO’s policy should be redrafted to:
i) make the Ethics Officer a direct hire and direct report to the governing body of WIPO (the Coordinating Committee)
ii) exclude the term “demonstrable grounds.”
iii) include access to external arbitration.
iv) make the policy retroactive in order to address reprisal already visited upon staff members by Gurry.
The first change ensures that the Ethics Office is independent of management. The second grants whistleblowers protection from retaliation on reasonable grounds, the third allows them access to a fair and objective decision-maker as the final arbiter on their allegations, and the fourth resolves the cases of whistleblowers who have been subjected already to retaliation by Gurry.
These changes would mean that the policy represents a reasonable approach to protecting WIPO whistleblowers. In short, there must be an independent decision-maker in whistleblower disputes with management, and the policy must be retroactive.