Most whistleblowing cases are likely to warrant legal action and end up in the court system. Historically, the European Court of Justice has set a precedent for reversing the burden of proof in cases where the balance of power between the whistleblower and the corporation is unequal. Understanding why this happened, and why it matters in cases of whistleblowing is important for the design of anti-retaliatory policies and for ensuring compliance with the EU Directive. Yet, a 2019 report by Transparency International Netherlands found that in 8 EU Member States, the burden of proof in cases of whistleblower retaliation lies with the whistleblower.
What is Burden of Proof?
The burden of proof is the obligation or responsibility to prove in a court of law the assertions made by the complainant. This burden, as a rule, lies with the person making the allegation. However, in some cases, such as discrimination, the rules are different. In the 1980s and 90s, the European Court of Justice increasingly sought to address the difficulties in providing evidence in such cases. It set a precedent for the reversal of the burden of proof rule and began requiring employers to prove that they had not engaged in discriminatory practices.
One example of how the law shifted can be found in the 1992 UK case of Enderby v. Frenchay Area Health Authority. Speech therapist Pamela Enderby had been receiving 40% less pay than her male colleagues who worked as pharmacists and clinical psychologists. She files a complaint with the Tribunal, which ruled that the difference in pay was due to each profession having a different bargaining structure, not because of a discriminatory practice.
Enderby appealed the ruling and in 1997, the Court of Appeal found that the employer would have needed to establish that there had been a shortage in the job market to explain the difference in pay and that otherwise, it was indeed gender discrimination. In this moment, the burden of proof passed from the employee to the employer. Businesses and organisations would be required to show that jobs of equal value were not paid the same salary due to a shortage in the job market that required special circumstances.
Whistleblowing Retaliation: Who Has the Burden of Proof?
The EU Whistleblowing Directive specifically addresses retaliation towards the person who discloses wrongdoing. This means the person accused of misconduct becomes responsible for providing evidence that he or she has taken retaliatory action against the accuser. Logically, a whistleblower is expected to submit enough evidence that misconduct or wrongdoing is occurring in order for a case to be opened, investigated, and referred to the proper authorities. In this sense, the burden of proof is on the whistleblower to prove that what they are disclosing really happened. This is true whether they make a confidential, public, or anonymous report. However, when the EU Directive was adopted in 2019, the usual way of applying the burden of proof rule was once again reversed.
Similar to cases of discrimination, retaliation in whistleblowing cases is one of the most frequent complaints employees make to authorities. Employees who disclose misconduct often face retaliation and unjust treatment as a result of reporting wrongdoing. In this case, unfair business practices are not done on the grounds of differences in ethnicity, age, gender, or disability. The imbalance of power between a large corporation and an individual trying to do the right thing is also a factor in removing the burden of proof and making it easier for the whistleblower to prove their case.
How to Prevent Retaliation for Whistleblowing
Businesses must fully consider the risks of attempting to retaliate against employees who submit a whistleblower report. Article 6 #11 and Chapter VI Article 19 of the EU Directive define retaliation as any act, direct or indirect, taken, recommended, or tolerated by the employer, occurring in a work-related context, and causing detriment to the whistleblower. The rules are meant to prevent retaliation and provide relief when it occurs (Article 21 #6). This may include directing the employer to reinstate employment, cover lost wages or future lost income, and pay for the whistleblower’s legal fees, medical treatment, or pain and suffering.
Having an anti-retaliation policy that meets EU Directive requirements means discouraging acts like dismissals, suspensions, harassment, withholding of promotion or training opportunities, reducing wages or work hours, or demoting any employee who discloses misconduct. If any decision is made to take such action against the whistleblower after a report is filed, the whistleblower will not be required to prove that they experienced retaliation. Instead, the burden will be on your company to prove that you did not retaliate against them, which means improving your response to whistleblowing reports is crucial. Your anti-retaliation policy should include a strategy for communicating these legal requirements to your anyone who could potentially retaliate against the person who filed the whistleblower report. In addition, some companies have implemented a retaliation risk assessment to measure the existing level of retaliation within their company and compare it to any reports of retaliation.
Whistleblower Retaliation Implications for Member States
The Directive stipulates that after the whistleblower has proven a case, the “burden of proof should shift to the person who took the detrimental action, who should then demonstrate that the action was not linked in any way to the reporting or the public disclosure.” Member States must adopt national whistleblower laws that reflect the burden of proof on the employer and presumes retaliation has happened when a whistleblower files a complaint. However, the level of protection each Member State offers, and the way the burden of proof is regulated differ greatly.
For example, before the EU Directive, there was no legal basis for reversing the burden of proof from the whistleblower to the employer in Austria, the Czech Republic, and Bulgaria. In Belgium, there is a reversal of the burden of proof at the federal level and within the Flemish government. In Croatia, the burden of proof is only reversed in the private sector. In Romania and France, the reversal is legally recognised, and in Denmark, there is no reversal of the burden of proof in the financial sector. The challenge since 2019 has been to align national Member State laws. Yet, many EU countries continue to face challenges in the transposition of the Directive despite their obligation to comply.
The EU Directive provides guidance for national laws on how to interpret the burden of proof rule in cases of alleged retaliation. The EU-wide rules are having far-reaching implications for Member States’ legal systems when it comes to the burden of proof. In 2018, then Vice-President of the European Commission Frans Timmermans explained the importance of protecting whistleblowers from retaliation:
“Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did take enormous risks. So, if we better protect whistleblowers, we can better detect and prevent harm to the public interest such as fraud, corruption, corporate tax avoidance or damage to people’s health and the environment. There should be no punishment for doing the right thing.”
