Recent disclosures like the Panama Papers, Cambridge Analytica, and the Fipronil egg contamination case reveal serious wrongdoings and raise questions about whistleblower rights and protection. These revelations were made by employees who were the first to know about the wrongdoing and made the difficult decision to blow the whistle on their organisations and companies. In doing so, these employees exposed themselves to potential retaliation.
Whistleblower Rights and Protection
Though employees blow the whistle for different reasons, they all have one thing in common; a need for greater legal support once the process is initiated. In 2017, former Pilatus Bank employee Maria Efimova was forced to leave Malta when she blew the whistle on corruption by Maltese and Azerbaijan leaders. She faced retaliatory charges of making false accusations against the police and defrauding the bank of EURO 2,000. Authorities in Cyprus issued an arrest warrant for Efimova, though the Greek courts decided not to extradite her when she surrendered to police.
The EU Whistleblower Directive offers employees like Efimova protection against retaliation. It also strengthens member nations’ ability to shield the public from harmful practices and corruption and ensures accountability and transparency from corporations and organisations. In the EU, whistleblower rights provide for the following measures:
- Legal advice: access to free comprehensive and independent information and advice on available procedures and remedies
- Remedial measures: recourse to remedial measures against retaliation such as workplace harassment or dismissal; reversal of the burden of proof and no liability for non-disclosure clauses
- Protection during judicial proceedings: If legal action is taken against the whistleblower such as defamation, breach of copyright or breach of secrecy, the EU Directive can be used as a defence.
The Directive establishes the rights of a whistleblower who discloses wrongdoings in good faith. That is, they are meant to protect an employee when there are reasonable grounds to believe the information they provide is true and falls within the scope of the Directive.
Conditions for Protection Under the EU Directive
The EU Directive protects employees working in the public and private sectors who have acquired information regarding a breach of law and are likely to face retaliation if they report it. An individual is considered a whistleblower if they are a current or former person who performs/ed services in return for remuneration. Individuals in non-standard roles such as agency workers, self-employed, freelance, contractors and subcontractors also have whistleblower rights and protection. Members of management, shareholders, trainees, and volunteers are also covered under the Directive.
The new rules also extend protection to people who have not begun work, third persons connected with the person who reports work-related retaliation such as relatives or colleagues are also eligible for whistleblower protection. Legal entities working closely with whistleblowers and workplace facilitators such as individuals who assist people reporting whistleblowing are considered to have whistleblower rights and protections.
As a minimum standard, Member States must ensure whistleblower protection when employees report breaches in specific areas of EU law:
- Public procurement
- Financial services, products and markets and the prevention of money laundering and terrorist financing
- Product safety
- Transport safety
- Protection of the environment
- Nuclear safety
- Food safety and animal health and welfare
- Public health and consumer protection
- Protection of privacy and personal data and network security
- Corporate tax and competition law
Both whistleblowers and organisations receive access to support measures when wrongdoings are investigated. At the time of writing, the EU whistleblower rules allow nations to decide for themselves whether anonymous whistleblowing is allowed. In either case, an employee who makes a report can potentially have their identity revealed and be exposed to further retaliation. Attempts to report wrongdoings internally must first be made in order to qualify for employee rights and protections under the rules. If no action is taken by the organisation, the report can then be directed towards a competent external authority. If in both cases there is no follow-up or action taken, the whistleblower may then make a public disclosure.
What If Retaliation Takes Place?
“The world suffers a lot. Not because of the violence of bad people but because of the silence of good people.” – Napoleon Bonaparte
Fear of retaliation is one of the biggest reasons employees choose not to disclose wrongdoings. Howard Levitt, a senior partner and employment lawyer at Levitt Sheikh suggests that when employees become the target of workplace reprisals, they can take steps to protect themselves. The first place to start is understanding the organisation’s internal whistleblowing policy and procedures for internal reporting. If this information is unavailable an employee should keep records of the incident, they plan to report to ensure access to it later on if legal proceedings are initiated.
The EU Whistleblower Directive provides a broad definition of retaliation. The burden is on the employer to prove retaliation hasn’t taken place. Retaliatory actions can include withholding a promotion, demoting, reducing wages or hours, reprimanding, suspending, laying off, dismissing, or transferring an employee to a different location. Blacklisting an individual from an industry, harming their reputation on social media, or using coercion, harassment, and intimidation to pressure the individual are also considered retaliatory according to the Directive.
When employees raise concerns about wrongdoings, they often find themselves having their own performance scrutinized or facing counterattacks. This can leave them feeling disillusioned about the process of whistleblowing. Whistleblowers facing reprisals for speaking out or asserting their legal rights are protected by the Directive. Even so, it’s possible that employees may face an escalation of retaliation when they choose to disclose information and pursue external channels. Keeping detailed notes and correspondence about retaliatory actions and saving them outside of the workplace can be helpful. Reaching out for emotional support outside of the organisation may also be necessary. Whistleblowers who experience retaliation can access legal remedies and compensation for any financial or non-financial loss. The remedy will depend on national laws, what kind of retaliation they suffered and what damages were caused.
How Does the EU Directive Change Things?
The 2019 Directive is a game changer for whistleblower rights in the EU. It provides minimum standards for EU nations to adopt the new rules and fundamentally changes the way many Member States approach whistleblowing. Companies are increasingly focused on compliance and are required to stay informed about the latest changes to make sure their internal policies align with new laws.