The key to protection: Civil and employment law remedies

Abstract

In this chapter we focus on lessons that can be learned from the civil and employment remedies for whistleblowing that exist in the United States, United Kingdom, Australia, New Zealand and Canada. These five English speaking common law countries have been selected as they have the most extensive experience with stand-alone or special purpose legislation aiming to provide remedies for whistleblowers; and there have been recent developments in the first three. As discussed in the previous chapter (Fasterling, Chapter 14), they provide only one snapshot - or range of snapshots - of the legal provisions and approaches that govern whistleblowing. Moreover, the two following chapters (Faunce et al., Chapter 16 and Spencer and Spencer, Chapter 17) deal in turn, and in more detail, with how the law can provide bounty incentives and remedies and with criminal remedies. Civil remedies as reviewed here, however, are plainly crucial to the types of different measures that need to be considered by researchers (see generally Vaughn 2012). It will be seen that there are a range of civil and employment remedies available in these countries: statutory, common law, administrative and contractual. Generally, these remedies flow from the anti-retaliation model discussed by Dworkin and Brown (2013), and by Fasterling above, which may or may not adopt an employment rights approach. However, some reference will also be made to the bounty model, which uses different strategies for encouraging and compensating whistleblowers.