WIPO Upgrades Its Whistleblower Policy

The United Nations World Intellectual Property Organization has upgraded its whistleblower policy, coming more into line with best practices for protecting employees from retaliation for reporting alleged misconduct in the organisation. Time will tell if the changes to the policy will prove effective.

The new policy, which is a confidential internal “office instruction” available here [pdf], strengthens the independence of the Ethics Office, addresses conflicts of interest at all levels, includes a clearer appeals process, and puts the burden of proof more squarely on the secretariat.

The policy places a duty on the agency to pursue complaints arising from both full-time staff and contractors, and whether the employee is still with WIPO or has left, according to sources. Complaints have to be made as soon as possible and not later than three years after the individual becomes aware of the alleged misconduct, it states. The policy is prospective, meaning it will apply in the future, sources said. It does not appear this will have an effect on some past complaints considered to be still outstanding.

The policy strengthens the role of the Ethics Office, as complaints will first be decided by the office “prima facie” if an investigation should go forward. And if the decision is no, there is an appeal process for the complainant with an independent outside agency.

If the Ethics Office decides that an investigation is warranted, i.e., that the action that was considered retaliation would not have happened without the complaint, the burden of proof falls more firmly on the secretariat to prove otherwise. In the past, a “preponderance of evidence” would be sufficient to show this. Now “clear and convincing” evidence that the action would have happened anyway (and was not aimed at punishing or intimidating) is necessary for the secretariat to get out of it – a higher standard.

Under the new rules, the Ethics Office will send the complaint to the Internal Oversight Division confidentially for an investigation, and IOD’s report will be submitted within 120 days. According to an amendment to the document proposed by the IAOC and adopted by member states this week:

“In cases where the Director of the Internal Oversight Division has not notified a complainant in writing of the status of the matter within six months, the complainant may also inform the Director General or the Chair of the Coordination Committee.”

Reports of alleged misconduct are made through several possible channels: the Office of the Director General, the director of the IOD, or the chair of the Coordination Committee (the member state committee overseeing staff matters). The identity of the reporting staff person will be kept confidential. It is also possible to make anonymous reports through the IOD email or telephone hotline.

A person found to have retaliated against a whistleblower will face “appropriate administrative action,” which could mean disciplinary proceedings.

In recent years, several complaints were aimed at the current director general, Francis Gurry, which in part led member states to decide at their 2016 annual General Assembly to request the revision of the whistleblower policy. In the new policy, there is a section on conflict of interest addressing various possible conflicts involving key players in the organisation including the director general and the chief ethics officer. The chief ethics officer can recuse his or herself and designate an alternative that is acceptable to the complainant. The director general can recuse him or herself and designate an “appropriate” staff person to act in his/her stead and notify the Coordination Committee chair.

The latter option raised continued concern for watchdog group the Government Accountability Project, which noted that the director general could choose someone favourable to him or herself. The concern echoed that of a letter from the Staff Council of the Staff Association. Several staff or former staff remain in limbo years after having brought complaints.

An initial draft of the policy was prepared by the secretariat and was subsequently changed after comments from the Internal Audit and Oversight Committee as well as member states, sources said. The WIPO policy also takes into account a revised policy at the UN level from February of this year, they said.

According to some sources, the policy received general approval of the WIPO member states on the Coordination Committee (being an internal staff document it was not for formal approval by member states). The committee, which oversees staffing matters, discussed it in a closed-door session on 6 October. Some members mentioned watching the implementation of the policy and the possibility of review in the future, the sources said.

 

Image Credits: 'Green Whistle', Steven Depolo