How to Address a Harassment Whistleblower Requesting Anonymity

本稿は、外資系企業のマネジメントや人事等を担当されている方において、内部通報への対応について外国人の上司等に説明する際に活用していただくことを想定して、以前執筆した日本語の記事「ハラスメント内部通報で通報者が匿名扱いを希望する場合の実務対応 」を英訳したものです。

ただ、単に日本語の記事を英訳しただけでは、日本の法律や実務を前提としない外国人には伝わらない事柄も少なくありません。たとえば、「パワーハラスメント」は和製英語であり、それだけでは外国人には伝わらない可能性がありますし、日本企業の「就業規則」と、外国企業の「Employee Handbook」は同じ概念ではありません。また、「employment-at-will」（理由がなくても自由に解約できる雇用契約）の原則をとる米国など、日本よりも容易に解雇を認める国もあり、前提となる価値観自体が大きく異なる場合もあります。そこで、本稿では、外資系企業のマネジメントや人事担当者等が、外国人の上司等に説明をする際に注意すべきポイントやアドバイスをグレーの「囲み」の中に日本語で記載しました。

Introduction

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.

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”)).

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.

Personnel relocation*

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

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

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

Summary

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.