I act as a point of contact in a company’s whistleblowing system, and an employee has reported that he/she has been subjected to terrible power harassment by his/her superior and requested the company to deal with the matter appropriately. However, the employee has also asked the company to ensure that the fact that he/she made such a report will not be revealed to the superior. How should the company address the matter?
The company cannot leave a report of power harassment unattended. Basically, the company is obligated to investigate the facts by, for instance, interviewing the relevant employee (victim/whistleblower) and the relevant superior (alleged harasser), and if the company finds that power harassment has actually been conducted, it must take measures necessary for personnel management purposes such as taking disciplinary action against the relevant superior.（*）However, if the whistleblower wishes to be anonymous and that his/her reporting not be revealed to the superior, the company should give first priority to ensuring the secrecy of the whistleblower’s identity. Therefore, the investigation of the facts and measures necessary for personnel management purposes have to be implemented without divulging the whistleblower’s identity, and accordingly, the company should contrive optimum measures on a case-by-case basis with regard to what should be done and to what extent (as specifically described in Clause 4 below).
（*）Article 30-2, paragraph 1 of the amended “Act on Comprehensive Promotion of Labor Measures, and Stabilization of Employment of Employees, and Enrichment of Their Working Lives” (the “Power Harassment Prevention Act”), which came into force on June 1, 2020. For small and medium enterprises, however, the obligation to take measures necessary for personnel management purposes becomes applicable on April 1, 2022; until then, the obligation remains an obligation to make efforts.
- Basic Measures to Be Taken by the Company in the Event of Whistleblowing on Harassment and Points to Note
- Dilemma That Occurs When the Whistleblower Requests Anonymity
- Practical Measures to Address the Dilemma
Rikisuke Yamanaka, Attorney-at-Law
Partner, Ushijima & Partners, Attorneys-at-Law. Admitted in Japan in 1999. Graduated from the University of Southern California, Marshall School of Business (M.B.A.) in 2006. Provides advisory services mainly to employers on various labor issues including encouragement of early retirement, harassment, whistleblowing, and non-compete obligations. Also provides advice on labor issues to a number of foreign-based corporations.
Kazuya Sato, Attorney-at-Law
Associate, Ushijima & Partners, Attorneys-at-Law. Graduated from the University of Tokyo, School of Law (J.D.) in March 2019. Commenced training at Legal Training and Research Institute of the Supreme Court of Japan in November 2019. Admitted to the bar in Japan (Dai-ni Tokyo Bar Association) in December 2020. Joined Ushijima & Partners in January 2021. Member of the Labor Issues Review Committee, Dai-ni Tokyo Bar Association. Provides advice on corporate issues including lawsuits, crisis management, real property and labor disputes.
In many harassment whistleblowing cases, the whistleblower 1 desires to be anonymous so that the fact of his/her reporting is not known to the alleged power harasser*, etc. (the “Doer”) for fear of reprisals from the Doer. If the company ignores or makes light of such request for anonymity in addressing the matter, it may result in serious consequences, such as the whistleblower suffering secondary damage in the form of reprisals from the Doer or loss of the employees’ confidence in the company and the company’s whistleblowing system. On the other hand, if the company neglects to investigate the facts or take actions regarding the Doer because the whistleblower requested anonymity, that may result in such consequences as repetition of similar harassment and significant deterioration of the work environment.
In this article, first we survey basic responses to whistleblowing on harassment (Clause 2), elaborate on the mechanism of the above-described dilemma when the whistleblower requests anonymity (Clause 3), and examine measures that should be taken by the company (Clause 4).2
Basic Measures to Be Taken by the Company in the Event of Whistleblowing on Harassment and Points to Note
The typical flow of measures to be taken by the company in the event of whistleblowing on harassment can be put in order as follows.
（ i ）Investigation of the facts (interview the whistleblower → interview witnesses (as necessary) → interview the Doer)*
（ ii ）Fact finding based on the results of the investigation under（ i ）above, assessment of the found facts, and decision regarding how to respond to the whistleblower and the Doer based thereon
（ iii ）Responding to the whistleblower (feedback on the investigation results, measures to protect the whistleblower, etc.)
（ iv ）Dealing with the Doer (disciplinary action against the Doer, other recurrence prevention measures, etc.)
An important point in the fact-finding investigation under ( i ) above is to give the Doer an opportunity to defend him/herself by having an interview with the Doer as well. There may have been a misunderstanding or bad intent on the part of the whistleblower, or possibly a justifiable story on the part of the Doer. The company should listen to the Doer in order to correctly understand the facts, and it is also legally required to give an employee an opportunity to defend him/herself before taking any disciplinary action against the employee, unless there is a special reason not to do so.
However, in the case of whistleblowing on harassment, there is a problem in that having an interview with the Doer may enable the Doer to recognize or presume who the whistleblower is. For instance, in an interview with a Doer who is reported to have conducted power harassment, the interviewer would ask the Doer questions concerning his/her recognition of his/her specific behavior toward a specific employee, such as “Did you say to Mr. A things like ‘You don’t understand what an elementary school kid can understand’ or ‘Why don’t you quit?’ in meeting room X at around such and such time on such and such day?” 3 Therefore, even if the interviewer does not tell the Doer who the whistleblower is, the Doer can assume that Mr. A must be the whistleblower.
The Power Harassment Prevention Act sets forth that
an employer may not dismiss an employee or treat an employee disadvantageously on the grounds that the employee blew a whistle or responded to an interview
(Article 30-2, paragraph 2 of the Power Harassment Prevention Act) and that an employer must make it thoroughly known to its employees that such disadvantageous treatment is prohibited, by stipulating so in its work rules* or other regulations (Clause 4(4)(b) of the so called “Power Harassment Prevention Guidelines” of the Ministry of Health, Labour and Welfare).
However, even if such prohibition is made fully known to employees, there remains a risk that the Doer will make reprisals against the whistleblower directly or discreetly, and so the company needs to pay full attention to such possibility.
Specifically, the company should explain to the whistleblower the following three points and then ask the whistleblower if he/she would consent to the company having such interview 4 (see Section III, 1(1) of the “Guidelines for Business Operators Regarding Establishment, Maintenance and Operation of Internal Reporting Systems Based on the Whistleblower Protection Act” of the Consumer Affairs Agency dated December 9, 2016 (the “CAA Guidelines”)).
（ i ）The company is considering having an interview with the Doer based on the facts learned from the whistleblower.
（ ii ）If such an interview is held, the company cannot avoid disclosing to the Doer information that may enable the Doer to identify the whistleblower.
（ iii ）In such case, the company cannot completely remove the risk that the Doer may attempt to make reprisals against the whistleblower if the Doer presumes the identity of the whistleblower.
Dilemma That Occurs When the Whistleblower Requests Anonymity
Reasons why a whistleblower requests anonymity
In practice, there are many cases where a whistleblower reporting harassment requests anonymity. 5 It is natural for a whistleblower to fear the consequences if the Doer learns the identity of the whistleblower: his/her relationship with the Doer would certainly get worse and it may become difficult to perform his/her work, or the whistleblower may become subject to direct or discreet reprisals such as deprivation of work responsibilities or intentional low performance appraisals.
Ensuring the secrecy of the whistleblower
If the company ignores the whistleblower’s request for anonymity in conducting an interview with the Doer, it may trigger secondary damages such as the Doer’s reprisals against the whistleblower if the whistleblower’s identity is learned through the interview. Even if no secondary damages occur, the whistleblower may develop a negative feeling toward the company such as “the company did not protect me” or “I should never have resorted to whistleblowing” and share such feeling with his/her colleagues. In such event, the employees’ confidence in the company’s whistleblowing system may be significantly damaged.
For this reason, it has been considered that the intention of the whistleblower should be respected to the maximum extent and the identity of the whistleblower should be kept strictly confidential in the operation of a whistleblowing system. The CAA Guidelines also stipulate that strict confidentiality should be maintained by taking the following measures (Section III, 1(1) of the CAA Guidelines).
It is also necessary to pay full attention to the amended Whistleblower Protection Act which will take effect in June 2022 and imposes a confidentiality obligation on those who are in charge of managing whistleblowing operations with criminal penalties for violations thereof. 6
The dilemma that ensuring the secrecy of the whistleblower restricts the investigation of the facts, etc.
If the whistleblower does not consent to the disclosure of his/her identity in the interview with the Doer and the whistleblower’s identity is strictly kept confidential, it is virtually impossible to ask the Doer any meaningful questions. In such case, it is impossible to confirm the facts or to give the Doer an opportunity to defend him/herself, and it is also difficult to give warnings or guidance to the Doer or take disciplinary action against the Doer. This may lead to the reported harassment being left unattended, such that the Doer may repeat similar harassment against the whistleblower or other employees.
The more vicious and serious the Doer’s harassment is, the stronger the whistleblower’s fear for the Doer’s reprisals against the whistleblower. This further motivates the whistleblower to refuse to consent to the company interviewing the Doer, which results in a higher risk that the harassment will be left unattended with the facts remaining unverified.
Practical Measures to Address the Dilemma
We explain below some possible measures to address the dilemma that ensuring the secrecy of the whistleblower restricts the investigation of the facts, etc., as described in 3-3 above. It may not be sufficient to take only one of these measures; it is necessary to determine the best measures for the company by combining two or more of them on a case-by-case basis based on the significance and nature of the case, workplace conditions, whistleblower’s intention, etc.
Even if it is not possible to verify the facts related to the reported behavior that is suspected to be harassment, future harm may be prevented by relocating the whistleblower or the Doer. In such case, arrangements should be made to conceal from the Doer the fact that whistleblowing is the cause of the relocation by, for example, disguising it as an ordinary personnel relocation. If the whistleblower is to be relocated, he/she should receive an advance explanation that his/her relocation has been determined as the best solution taking into consideration various circumstances, because the whistleblower may feel offended as to why he/she has to be relocated when he/she is the victim of harassment.
Harassment training can be implemented even when the facts pertaining to the whistleblowing cannot be verified, and if the contents of the training are appropriate, you can expect a certain educational effect and restraining effect on the Doer. It should be noted that if the Doer notices that the harassment training is implemented because of whistleblowing on the Doer, the Doer may try to identify the whistleblower; therefore, it is advisable to avoid such situation by subjecting all managers to the harassment training or by scheduling periodic harassment training toward the future.
Encourage other employees who are harassed by the same Doer to report the harassment
There are many cases where an interview with the whistleblower reveals suspected harassment by the Doer against other employees, too. One option to take in such cases is to ask as many employees close to the Doer as possible abstract questions 7 such as “Are there any issues you would like to talk about concerning the work environment?” and if anyone mentions that they have been subjected to harassment by the relevant Doer, encourage the employee to report it to the company and request the company to address the situation.
If a number of employees other than the first whistleblower report harassment by the relevant Doer, the company may choose to give the following warnings and guidance to the Doer. 8
“It has been reported from more than XX employees that they were harassed by you. As all the employees who made the report do not want you to know that they made such report, we cannot tell you their names or departments or the details of the harassment they reported, but it is a fact that more than XX employees reported your power harassment. Please reflect on your conduct and correct any problems you find in your behavior.”
If a number of employees report harassment as described above, it is less likely that the asserted harassment by the Doer is based on a misunderstanding or malicious intent by the whistleblower, compared to when there is only one whistleblower, and it would be harder for the Doer to identify the whistleblowers (nevertheless, the company should basically explain to each whistleblower that the company is going to give such warning and guidance to the Doer and obtain their consent). 9
Persuade the whistleblower to consent to the company interviewing the Doer
The company may try to persuade the whistleblower to consent to the company interviewing the Doer based on the facts informed by the whistleblower.
You should not force the whistleblower to consent, but you can explain to him/her that the problem involves not only the whistleblower but also the safety of other employees at the same workplace, and try to seek his/her understanding by ensuring that the company will promptly take appropriate measures if the whistleblower detects any suspected reprisal or the like and informs the same to the company. 10
However, as it should be a fundamental premise that the company is trusted by the whistleblower, it is vital to make it thoroughly known that the company wants the whistleblower system to function soundly and gives top priority to the protection of whistleblowers and those who cooperate in the investigation, which includes regularly clarifying the company’s intention to prohibit any reprisal against whistleblowers and those cooperating in investigations.
Consider dismissal of the Doer
In the case where more than one employee has left the company for fear of physical danger due to the Doer’s violent acts, remarks, sexual harassment, etc., it may be unavoidable to consider dismissing the Doer* for the purpose of maintaining order in the workplace and securing the safety of employees.
When dismissing the Doer, it is advisable to give the Doer an opportunity to defend him/herself beforehand 11 However, if it is difficult to give the Doer an opportunity to defend him/herself beforehand because the whistleblower requests anonymity, it may be possible for the company to abstractly explain to the Doer the reason for the dismissal (without referring to specific acts of harassment) and give the Doer an opportunity to defend him/herself right before the dismissal notice. 12
A whistleblowing system is a structure that enables the company to solve its internal problems promptly and rationally if managed properly. However, if the system is mismanaged, not only does it fail to solve problems but it creates a new problem: the company must appropriately address the failure of the whistleblowing system.
The date of enforcement of the amended Whistleblower Protection Act that imposes a confidentiality obligation on the personnel in charge of the whistleblowing system is approaching, and the burden of such personnel and related risks are growing. It is clear that there is an increasing need to work with attorneys who are skilled in the operation of whistleblowing systems.
In practice, there are cases where a whistleblower is a witness of harassment, etc.; however, our analysis in this article is made assuming cases where harassment is reported by the victim. ↩︎
Although we focus on power harassment in this article, these arguments are also applicable to sexual harassment and maternity harassment＊.
If the interviewer asks the Doer interview questions such as “Did you harass someone? Would you like to defend yourself?” without specifying the victim of the harassment or the form of the act in question, the Doer would not know what behavior to whom was the problem and therefore would not be able to explain or rebut, and such an interview would not be considered as having given the Doer an opportunity to defend him/herself. ↩︎
The same care must be taken for witnesses of the relevant power harassment if they are to be interviewed. ↩︎
There are cases where whistleblowing itself is made anonymously, but the discussions in this article are made assuming cases where the whistleblower identifies him/herself. ↩︎
The amended Whistleblower Protection Act, which is scheduled to take effect by June 2022, imposes on those who engage in the management of a whistleblowing system a confidentiality obligation not to divulge any information known to them through such engagement that can be used to identify the whistleblower (Article 12), and sets forth a criminal penalty (a fine of 300,000 yen or less) for the violation of such obligation (Article 21).
The reportable facts to be protected under the Whistleblower Protection Act are limited to criminal acts and other acts that are subject to criminal penalty; therefore, this amended Act does not always apply to all harassment cases.
However, there are possibilities that power harassment constitutes criminal assault (Penal Code, Art. 208) or criminal contempt (Penal Code, Art. 231), and that sexual harassment constitutes indecent assault (Penal Code, Art. 176). Whether an act reported by whistleblowing constitutes such criminal act is not known unless investigated. Therefore, it is necessary for personnel in charge of dealing with whistleblowing on harassment to proceed on the premise that the amended Whistleblower Protection Act may become applicable and a confidentiality obligation may be imposed after the said amended Act takes effect (in other words, if such personnel divulge, without obtaining the consent of the whistleblower, any information that can lead to the identification of the whistleblower, there is a risk that a criminal charge may be brought by the whistleblower for a violation of the said Act).
When asking such questions, you should avoid disclosing the fact that the harassment by the Doer has been reported by the first whistleblower, unless the first whistleblower consents to such disclosure. This is because even if the company requests the interviewee to keep the contents of the questions, etc. confidential, they may nevertheless be leaked and can reach the Doer. ↩︎
Taking disciplinary action can be an option if the situation so requires. In that case, it must be examined, among other things, whether giving the Doer an opportunity to defend him/herself is a requisite or whether abstract exchanges can be considered as having given such an opportunity. ↩︎
If the details of the reported harassment are not to be disclosed to the Doer, it may be difficult for the Doer to know what behavior is considered problematic. Therefore, it would be beneficial to combine other measures such as requiring the Doer to participate in harassment training or take professional counseling. ↩︎
It may be easier to obtain the consent if the whistleblower or the Doer is relocated first. ↩︎
Particularly, disciplinary action taken without giving the Doer an opportunity to defend him/herself is considered to be invalid if the work rules have a provision that requires the company to give the relevant employee such an opportunity before taking disciplinary action. ↩︎
In an extreme case, it may be necessary to consider dismissal without giving the Doer an opportunity to defend him/herself. ↩︎