How Do You Know If You Have A Whistleblowing Case?

by: Michelle Thompson

How do you determine what is a whistleblower case and what isn’t? While this article doesn’t replace the specialized determinations trained investigators perform, it examines three common cases where breaches fall under the EU Whistleblower Directive. Whistleblower cases reported by employees have been instrumental in fighting tax evasion, fraud, and corruption, and ensuring freedom of expression and democracy, as well as workers’ and consumers’ health and safety. However, only 13% of employees have knowledge of existing rules for whistleblower protection in their home country or company. 

It’s unrealistic to expect an employee to know about all of the relevant laws and regulations related to each potential case. Whistleblower tools can help by providing categories under which employees can submit information when they have reasonable suspicion that misconduct has taken place. Wrongdoings are determined in accordance with national criminal codes and laws that govern the public and private sectors. They can fall under corruption, financial crimes such as money laundering or tax evasion, welfare fraud, fraudulent accounting practices, capital-market offences, and more. If the report does not appear to fall within the purview of the whistleblower program, the information should instead be forwarded to another department such as HR, ATIP, or IT for follow up.    

3 common types of whistleblower cases

Your determination of whether an employee holds whistleblower rights and protection will depend on which Member State you’re in. While the Directive focuses on public health, the environment, public finances, consumer safety, and data protection, Member States can extend protection to other areas if they wish. This means workplace issues like harassment and discrimination could potentially be covered, although this is not mentioned in the Directive. Under the current rules, employees are protected against retaliatory actions when they disclose information.  

Having an anonymous whistleblowing tool can ensure those who disclose wrongdoings are protected from retaliation and have their statements documented in real time as the report is being submitted. You can work with whistleblowers and non-whistleblowers to respond to their reports and communicate whether their cases will be covered under the Directive or not. The tool is also useful for providing timely feedback and decisions to those throughout the investigation.   

Below are three examples of some of the most common cases that have been reported by EU employees:

1. Fraud, corruption and waste in the healthcare sector

One of the most reported types of misconduct is healthcare fraud. The European Healthcare Fraud and Corruption Network (EHFCN) monitors fraud, corruption, and waste in healthcare and aims to create an anti-corruption culture among industry leaders such as medical care providers, pharmaceutical companies, insurance companies, drug companies, and medical device companies. Like other industry regulators, its objective is to ensure the health and safety of EU citizens who use goods and services are not put at risk. While each Member State approaches healthcare misconduct differently, the EHFCN has identified six common types of corruption frequently investigated: 

  • Bribery in medical service delivery
  • Procurement corruption
  • Improper marketing practices
  • Misuse of high-level positions
  • Undue reimbursement claims
  • Fraud and embezzlement of medicines or medical devices

If an employee discloses potential misconduct that fits one of these categories, you will want to open an investigation and collect more information about the case. In a recent case in Finland, an Executive Director at a hospital was accused of offering contracts to his son’s IT companies. Other businesses were excluded from the procurement process and purchases were sometimes delayed, giving the son time to prepare for the tender. These types of disclosures fall under the protection of the Directive. The EHFCN shares additional information about corruption in the healthcare sector on its website. 

2. Discrimination, harassment, and retaliation

While employees can blow the whistle on a broad range of issues, the EU Directive doesn’t explicitly protect against people who report harassment or discrimination. Discrimination, harassment, and retaliation cases involve employees who report issues such as sexual or criminal harassment, gender or race discrimination, and illegal retaliatory actions such as dismissals or transfers to new locations. While employee claims about these issues are valid, you will need to decide whether cases of discrimination and harassment should be referred to the human resource department or fall under the Directive. 

Your company should already have policies in place to address cases of harassment and discrimination based on gender, race, and other characteristics. The Directive does not currently mention specific areas of anti-discrimination or gender equity. Most national workers’ unions will address these issues and offer employees external avenues for reporting when internal mechanisms fail. Many people have identified this as a shortcoming in the Directive. You can use the whistleblower tool to share resources and information about external authorities and reporting channels, as well as internal policies. 

Gender equality and anti-discrimination are considered fundamental principles in EU law and are covered in the Treaty on the Functioning of the European Union (TFEU), the EU Charter of Fundamental Rights, and the Treaty of the European Union (TEU). In Article 19, the Directive does mention that harassment and discrimination can be considered forms of retaliation. If discrimination or harassment has been experienced by the person because they disclosed information about wrongdoing, the employee could qualify for whistleblower protection. 

3. Public safety violations

There are already established rules that protect consumers from safety violations at the EU level, although these laws vary across EU countries. The EU Directive gives whistleblower rights and protection to employees who disclose wrongdoings about these cases. One example is the aviation industry where employees sometimes disclose safety violations that put the public or workers’ lives at risk. The European Union Aviation Safety Agency (EASA) provides employees with confidential reporting channels so that they may disclose irregularities or malpractices through an external channel. 

People who disclose wrongdoings must follow the 3-tier channel model. They are first encouraged to report through internal channels within their organisation. If nothing is done, they can use national channels within their Member State. Safety violations in aviation primarily focus on acts of omission such as breaching common safety rules and measures, environmental protection, sound safety management principle, and ground handling best practices. When accidents and serious incidents are a result of negligence or misconduct, they fall under the scope of the EU whistleblowing Directive. 

The European Public Service Union (EPSU) recently said that the new EU Directive will “be a helpful tool to fight a culture of secret at work, and foster transparency, responsibility and trust, as well as workers’ right to consult their representatives.” Member States are currently working to create laws that align with the Directive and protect disclosures about public safety and other policy areas. In some cases, the Directive has broadened the scope of who is protected to include board members, volunteers, trainees, and shareholders. This means the person who reports wrongdoings that have a negative impact on public safety are considered whistleblowers if they disclose in good faith or if there is reason to believe they have become the victim of retaliation. To learn more about employee rights and protections under the Directive, click here.