New developments in the protection of whistle-blowers in the workplace

This topical update on the protection of whistle-blowers in the EU mainly covers developments that have taken place in the years 2013–2016. The update covers international, European and national level legislation, and includes two case studies on the protection for whistle-blowers in Ireland and Slovakia.

Developments at international and European level

The term ‘whistle-blowing’ was coined in 1971 by the US politician, consumer activist and lawyer, Ralph Nader, during a conference on 'Professional Responsibility' (Nader et al, 1972; Vandekerckhove, 2006).

At international level, whistle-blowing standards have been set up by the United Nations Convention against Corruption (UNCAC), the Council of Europe, the OECD Anti-Bribery Convention, and various civil society organisations (Ashton, 2015).

In recent years, several efforts have been made at the European level to encourage Member States to regulate protection of whistle-blowers. These are summarised below.

• On 29 April 2010, the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1729 on the protection of ‘whistle-blowers’. The Resolution recognises the importance of whistle-blowers and states that most Member States have no comprehensive laws on whistle-blower protection. In the Resolution, the Parliamentary Assembly invites all Member States to review their whistle-blower protection legislation, which it states should be comprehensive and cover both public and private sector employees.
• On the same day, PACE also adopted Recommendation 1916 on the protection of ‘whistle-blowers’. This stresses the importance of whistle-blowing as a tool to increase accountability and to strengthen the fight against corruption and mismanagement. In the Recommendation, the Parliamentary Assembly urges the Committee of Ministers to draw up a set of guidelines for the protection of whistle-blowers, and to invite Member States to examine their existing legislation and its implementation to assess whether it conforms to these guidelines.
• On 30 April 2014, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2014)7 on the protection of whistle-blowers accompanied by an explanatory memorandum. This is the most elaborate text on the subject at European level. It recommends that Member States have in place a ‘normative, institutional and judicial framework to protect individuals who, in the context of their work based relationship, report or disclose information on threats or harm to the public interest’ (cf. also Lewis, 2010).
• On 29 October 2015, the European Parliament adopted a Resolution on the follow-up to the European Parliament Resolution of 12 March 2014 on the electronic mass surveillance of EU citizens in relation to the EU Charter of Fundamental Rights.
• A 2014 study (PDF) by the Committee on Civil Liberties, Justice and Home Affairs (LIBE) for the European Parliament, concluded that ‘an EU framework for the protection of whistle-blowers in cases related to national security should be adopted’ and that ‘the systematic protection of whistle-blowers should include strong guarantees of immunity and asylum’.
• A related European Parliament resolution from 8 September 2015 on Human rights and technology: the impact of intrusion and surveillance systems on human rights in third countries’ calls for the scope for international protection of whistle-blowers to be extended, and encourages the Member States to table laws to protect whistle-blowers.
• A number of committees of the European Parliament, most recently the TAXE special committee on tax rulings, invited the European Commission to propose legislation on whistle-blowers, establishing a deadline of June 2016.
• Several groups in the European Parliament have called for an EU directive designed to protect whistle-blowers in the workplace. Writing on 3 May 2016 to the President of the European Commission (PDF), Jean-Claude Juncker, the Greens/EFA Group stated:

We can no longer afford to stand by while the Commissions [sic] remains inactive on the matter. We have commissioned EU legal experts to identify a solid legal basis and produce a draft a [sic] directive to establish minimum standards of protection across the Union. The draft directive is inspired by the international standards established by the United Nations, Council of Europe, OECD and leading civil society organisations and seeks to protect workers from unfair retaliation or reprisals faced as a consequence of their disclosure of information that is in the public interest.

Other European organisations have also been active in this area. For instance, a European Parliament cross-party alliance on Integrity, Transparency, Corruption and Organised Crime has drawn attention to the need to protect whistle-blowers across Europe (PDF). At the Tripartite Social Summit on 16 March 2016, the Council of European Professional and Managerial Staff (Eurocadres) called for European-wide whistle-blower protection. Martin Jefflén, President of Eurocadres, stated: 'We aim to continue evaluating options, in particular with regards to legal basis, together with all the current initiatives in Parliament to move forward on this issue. We hope that the Commission will pick up on this work together with the Parliament'.

Protection of whistle-blowers at national level

Regulatory frameworks

A 2013 report by Transparency International, Whistle-blowing in Europe: Legal protections for whistle-blowers in the EU, states that 20 EU Member States had laws that made either comprehensive or partial provisions for whistle-blowers in the public and/or private sector. Since 2014, legal provisions to protect whistle-blowers have also been adopted in Greece, Ireland and Slovakia. According to an interactive online map from the European University Institute (EUI), 23 Member States now provide comprehensive or partial protection of whistle-blowers. These Member States are listed in the table below, grouped according to the extent of the provisions. Ireland and Slovakia, the subjects of the two case studies, are among those with comprehensive protection. More recently, the Swedish government proposed new legislation to improve the protection of whistle-blowers in the workplace (see below). If passed, this will come into force on 1 January 2017. As at mid-July 2016, five Member States; Bulgaria, Finland, Lithuania, Portugal and Spain, have no – or very limited – regulations to protect whistle-blowers.

Regulatory frameworks protecting whistle-blowers in EU Member States and Norway

Comprehensive provisions	Partial provisions	No/very limited provisions
Ireland Luxembourg Romania Slovakia Slovenia UK	Austria Belgium Cyprus Czech Republic Denmark Estonia France Germany Greece Hungary Italy Latvia Malta Netherlands Norway Poland Sweden	Bulgaria Croatia Finland Lithuania Portugal Spain

 

 

 

 

 

 

 

 

 

 

 

 

Note: Situation as of mid-July 2016.

Source: Transparency International (2013), updated by the authors

The protection of whistle-blowers, in most countries, has a legislative basis – notably the UK’s Public Interest Disclosure Act 1998, amended in 2013 (Ashton, 2015). In other countries, the main source of protection is jurisprudential, while others, including the Netherlands, use non-binding but highly recommended codes of conduct which act as sources of best practice for employers (Thüsing and Forst, 2016, p. 7).

How is whistle-blowing defined?

Jubb (1999) defined whistle-blowing as:

a deliberate non-obligatory act of disclosure, which gets onto public record and is made by a person who has or had privileged access to data or information of an organisation, about non-trivial illegality or other wrongdoing whether actual, suspected or anticipated which implicates and is under the control of that organisation, o an external entity having potential to rectify the wrongdoing.

Macey (2007) considered a whistle-blower to be:

an employee or other person in a contractual relationship with a company who reports misconduct to outside firms or institutions, which in turn have the authority to impose sanctions or take other corrective action against the wrongdoers.

More recently, Brown et al (2014) described a whistle-blower as:

an organisation or institutional ‘insider’ who reveals wrongdoing within or by that organisation or institution to someone else, with the intention or effect that action should then be taken to address it.

Who is covered?

The protection of whistle-blowers operates on two axes:

• Firstly – in terms of the status of workers: For example, some systems of law provide protection to all employees, even to job applicants (as in the case of Malta’s Protection of the Whistle-blower Act, 2013 (PDF). While in others, the protection is limited to people already in a labour relationship.
• Secondly – in terms of the categories of workers covered by the law: In most systems, protection is offered for both public and private sector workers. While in some countries, such as Italy, the Netherlands and Romania (Law No. 571), it is limited to the public sector.

In Greece, although protection is complete on the first axis, it is only partial on the second. According to an article by Dr Nestor Courakis, Emeritus Professor from the University of Nicosia in Cyprus (PDF), Greek law protects ‘every person and not only employees and workers, but also consultants, contractors, trainees/interns, volunteers or even journalists and activists’. However, he also points out that ‘there is no specific protection nor reverse burden-of-proof for employees or workers of the private sector who make disclosures and are consequently dismissed or otherwise mistreated by their employer’.

Protection against retaliation

Typically, Member States provide protection against unfair dismissals and other forms of employment-related retaliation for whistle-blowers. For example, a Luxembourg law relating to the fight against corruption states that ‘an employer is not authorised to retaliate against the person who has filed a complaint or informed the employer of any wrongdoing’. Any termination of the employment contract because of whistle-blowing is null and void according to article L.271-1(3) of the Luxembourg Labour Code.

However, in certain cases, the law offers even greater protection. Malta’s Protection of the Whistle-blower, for example, protects whistle-blowers from any ‘detrimental action’. This includes ‘action causing injury, loss or damage, victimisation, intimidation, harassment and/or occupational detriment’.

Hungary’s Act CLXV of 2013 on Complaints and Public Interest Disclosures (PDF) provides that any action taken as a result of a public interest disclosure, which may cause disadvantage to the whistle-blower, shall be unlawful even if it would otherwise be lawful.

A draft law in Sweden designed to protect whistle-blowers not only from being fired or laid off, but also from being ‘subject to harassment or being disfavoured by not having his/her contract renewed or not being promoted because of having brought attention to a problem’, states that ‘Whistle-blowers who are subject to reprisals from their employer will be given compensation for damages’.

Procedures for whistle-blowing in the workplace

Many countries recognise the right of whistle-blowers to challenge in court any retaliation by an employer as a result of the disclosure of information regarding wrongdoing. Several systems also recommend or even require the establishment of a preliminary internal procedure at the enterprise level to ensure the safety of whistle-blowers. For instance, the recent laws in Hungary and Slovakia, Act No. 307/2014 Coll. (PDF), cover such internal procedures.

Confidentiality

According to Thüsing and Gerrit (2016, p. 17), ‘anonymous whistle-blowing is considered by some to offer particularly strong protection for whistle-blowers, while others perceive it as an invitation to denunciators’. These different viewpoints explain the diversity of legislative approaches to confidentiality and anonymity of whistle-blowers.

In most European countries, anonymous whistle-blowing is accepted. For example, in Austria, a government-sponsored website was launched in 2013 that enables investigators from the Public Prosecutor's Office to get in direct contact with whistle-blowers, with anonymity assured.

Similarly, in Hungary, the law provides that ‘without such explicit consent, the personal data of the complainer or the whistle-blower shall not be made public’. However, there are also countries, for example Malta, in which anonymous whistle-blowers do not benefit from protection.

Role of the social partners

The social partners play a role not only in adopting legislation on the protection of whistle-blowers, but also in its application.

At the enterprise level, the employee’s trade union membership is seen as attracting better protection in the case of whistle-blowing. Norway’s experience, for example, indicates a correlation between the degree of trade union organisation and collective exercise of the rights and protection of whistle-blowers. In the case of disclosure of violations of law or ethics at work, employees acting alone appear to be exposed to a greater risk than those who are organised.

But organisation does not necessarily mean union membership. In Germany, for example, there is a whistle-blowers’ network that acts as a protective element.

Special areas for protection

Most systems of law ensure the protection of whistle-blowers reporting unlawful or even un-ethical conduct. However, certain sensitive areas enjoy special attention because of their increased incidence and the risk that the absence of such protection of the whistle-blower would be exposed.Indeed, in many countries, such as Croatia (Thüsing and Forst, 2016, p. 3), Luxembourg, Romania and Slovenia, protection is aimed at disclosures of corruption.

Regulation concerning protection of whistle-blowers can also be found in special areas, such as environment protection, where both France (Thüsing and Forst, 2016, p. 133) and Norway have recently adopted special regulations.

Several Member States, for example France and the UK (Thüsing and Forst, 2016, p. 9), protect whistle-blowers by means of domestic anti-discrimination legislation. In other countries, protection for whistle-blowers is linked to freedom of expression laws.

Case study 1: The Irish Protected Disclosures Act, 2014

As an article in the Irish Examiner on 29 December 2014 concludes: ‘One thing is clear: Management will have to get used to the act – contracting out from the legislation is not permitted’.

The regulatory framework

The Protected Disclosures, Act 2014, reflects the commitments of the Programme for Government as well as a recommendation of the Final Report of the Mahon Tribunal, which advocated the introduction of pan-sectoral whistle-blower protection legislation. The act came into effect after a five-year campaign by Transparency International Ireland.

According to Article 6 of the Code of Practice on Protected Disclosures Act 2014 (Declaration) Order 2015:

The purpose of the Act is to provide a statutory framework within which workers can raise concerns and disclose information regarding potential wrongdoing that has come to their attention in the course of their work in the knowledge that they can avail of significant employment and other protections if they are penalised by their employer or suffer any detriment for doing so.

The Act states that compensation in the case of unfair dismissal linked to a protected disclosure can be up to a maximum of five years’ remuneration. According to an EUI overview on whistle-blowing in Ireland (PDF), it also includes special arrangements for ‘disclosures on law enforcement matters and those issues that could adversely affect Ireland’s security, defence or international relations’.

How is whistle-blowing defined?

The Code of Practice states:

Whistle-blowing is the term used when a worker raises a concern about a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligation which came to the worker’s attention in connection with the worker’s employment.

Relevant wrongdoings, according to the Act, include:

• commission of an offence;
• failure to comply with any legal obligation;
• miscarriage of justice;
• health and safety of any individual;
• misuse of public money;
• gross mismanagement by a public body;
• damage to the environment;
• destruction or concealment of information relating to any of the above.

Who is covered?

The Act protects workers in all sectors of employment, both public and private, including:

• employees;
• civil and public servants;
• members of the police and defence forces;
• contractors and consultants;
• temporary agency workers;
• trainees, temporary workers, interns, and those on work experience.

There is, however, no provision for class action in the act. According to Thüsing and Forst (2016, p. 186), ‘claims for breaches of labour law must be pursued individually in Ireland … meaning interest groups cannot pursue a legal action on behalf of an individual worker’.

Level of protection

The Act states that, if a disclosure is made by a worker in line with the act, they are protected from penalisation. Penalisation includes:

• suspension, layoff or dismissal;
• demotion;
• transfer of duties, change of location, change in working hours, reduction in wages;
• imposition of reprimand, discipline or other penalty;
• unfair treatment;
• discrimination;
• harassment or threat of reprisal.

A leading employment law counsel was quoted in The Irish Times of 15 January 2016 as stating that the legislation provides ‘spectacular protection for employees’.

Workplace procedures and policies

It is mandatory for all public bodies – and highly recommended for private employers – to implement an agreed whistle-blowing policy. The Act opens up a number of avenues for potential whistle-blowers, providing for a ‘stepped’ disclosure process – both internal and external – to the workplace. The first step is internal, that is, a ‘protected disclosure’ to the employer. A civil or public servant may make a protected disclosure to a government minister on whom any function relating to the public body is conferred. However, there is no obligation, as a first step, to disclose to the employer, so a worker may also make the initial disclosure externally. When a worker seeks advice from a trade union or a lawyer, this avenue is also treated as a 'protected disclosure’.

Does motivation matter?

The motivation for making a disclosure is irrelevant, according to the Act. A worker needs only to have a reasonable belief about a wrongdoing which has come to the worker’s attention in connection with their employment. According to EUI’s overview of whistle-blowing in Ireland, 'the protections remain available even should the information disclosed be proven incorrect on examination. Deliberate false reporting will not meet the reasonable belief test however and is not protected'.

Confidentiality

The identity of the person making the disclosure must be protected by all possible means. A disclosure may be made anonymously, since the focus of the process is on the reported wrongdoing.

Views of the Irish social partners

During the drafting of the 2014 statute, representatives from the Irish Congress of Trade Unions (ICTU), the National Union of Journalists (NUJ), Ibec (the Irish business and employer organisation), Transparency International Ireland and other experts were consulted (OECD, 2016, p. 176). In general, both employee and employer representatives welcomed the introduction of the Act.

On the trade union side, the ICTU, the Irish Municipal Public and Civil Trade Union (IMPACT) and the Services, Industrial, Professional and Technical Union (SIPTU), have welcomed the Act’s introduction. Already in 2010, ICTU had demanded enhanced protection for whistle-blowers. The 2014 Act was welcomed by trade unions as a major step forward (PDF), according to the ICTU guidelines for trade union negotiators. IMPACT warmly welcomed the new law, which it described as the successful culmination of a long trade union campaign. In a press release dated 31 March 2014, SIPTU Health Division Organiser, Paul Bell, reiterated that ‘SIPTU has championed the introduction of whistle-blowing legislation which protects those who reveal information which is deemed to be in the public interest’.

In a statement on its website, Ibec recognised the need to secure appropriate levels of protection for those who disclose illegal activities or other wrongdoing where those disclosures are made in good faith and in the public interest. It also said it had ‘called on the Minister to provide balance for employers, in particular, from being subjected to frivolous or vexatious disclosures and from unjustifiably large penalties’.

According to OECD (2016, p. 179), 'the Protected Disclosures Act is a new and innovative piece of legislation ... does represent a positive contribution to the overall anti-corruption framework and is likely … to have the effect of positively changing public sector behaviour'.

Case study 2: Slovak Act of 2014

The regulatory framework

Act No. 307/2014 Coll. on Certain Aspects of Whistle-blowing governs the conditions for granting protection to workers who report a crime or other anti-social activities in the workplace. It also deals with the rights and obligations of whistle-blowers when reporting anti-social activities.

Quoted in an article in The Slovak Spectator on 8 December 2014, Pavel Nechala, a lawyer working with Transparency International Slovensko, said: 'The law is the most comprehensive solution that has been introduced in Slovakia so far. Unlike the previous proposals, it really deals with the protection of employees when reporting on murky practices'.

How is whistle-blowing defined?

According to the Act, whistle-blowing is a disclosure made by an employee of facts or events which they had learned in relation to the performance of their employment. The procedure of disclosure depends on the seriousness of the reported anti-social activity.

Who is covered?

According to an article by International Financial Law Review on 22 January 2015, the Act defines a whistle-blower as 'a natural person who, in good faith, reports something they learn of while at work, that could significantly help to expose activities that are against the public interest'. The protection of the law is also extended to people who are significantly close to the whistle-blower. This could be a relative, spouse or another person who is so close to the whistle-blower that ‘harm suffered by one could be felt by the other as his/her own’.

Level of protection

The law expressly prohibits any discrimination or retaliation towards employees as a reaction to their reports of a criminal or other anti-social activity. It offers two levels of protection:

• In simple matters (that is, disclosure of non-serious anti-social activities discovered in the course of employment), any legal act against the whistle-blower, may (as a temporary measure) be suspended by the Labour Inspectorate .
• In the case of disclosure of serious anti-social activities, the employee may apply for protection to the prosecutor or, if the case may be, the administrative court.

Serious acts against the public interest are defined as unlawful acts that constitute defined criminal offences which carry a possible prison sentence where the upper limit exceeds three years, or are administrative offences for which the upper limit of the possible fine is €50,000.

Workplace procedures and policies

The Act requires any employer with at least 50 employees to create an internal system to deal with whistle-blowing. This would involve setting up a separate organisational unit (or at least appointing a responsible person in charge of the procedure) and specifying the ways in which reports can be submitted. As noted in a recent analysis:

The employer has also the obligation to issue internal policies laying down the details on: reporting, investigation of reports and authorizations of the responsible person in the investigation of the reports, maintaining confidentiality of the identity of the person making the report, keeping records of the reports, notification of the person making the report of the result of investigation, and on processing the personal data stated in the report.

Does motivation matter?

The personal motivation of the whistle-blower does not matter. The law requires only ‘good faith’, which means that whistle-blowers, considering the facts of which they are aware and considering their knowledge, are convinced that what they are reporting is accurate.

Confidentiality

According to the Slovak law, a whistle-blower’s anonymity can be maintained on the grounds of a special request directed to the prosecutor, to the court or to the administrative authority.

Views of the Slovak non-governmental organisations (NGOs)

The Fair Play Alliance (a Slovak NGO supervising public administration) is reported to have stated that 'although the law covers many important issues, its effectiveness will depend on its implementation by public bodies, most of which have yet to demonstrate their commitment to protect whistle-blowers'.

Conclusions: More national legislation in the future?

Protection of whistle-blowers is an evolving subject benefiting from increasingly advanced regulations. In the last three years, new laws on whistle-blowing have been adopted in several European countries, including Greece, Hungary, Ireland, Malta and Slovakia. However, introducing whistle-blower protection can be difficult, as evidenced by the controversial bills currently being debated by parliaments in the Czech Republic, France and Sweden.

Indeed, in the Czech Republic, the debate on whistle-blowing dates back to the 2012. Successive bills have been considered, generally correlated with the Anti-Corruption Action Plan. A new draft was submitted to the government by the Minister for Human Rights in April 2016, while an alternative draft was submitted by the Minister of Finance. According to legal commentators, ‘both of the above drafts contain a number of uncertainties and controversial aspects, and it is unclear if any of them will come into effect and what the final form of the adopted legislative measures will be’. However, the Supreme Court of the Czech Republic and the Constitutional Court of the Czech Republic have, in principle, confirmed that even without an explicit legal basis, it is possible in the legal order of the Czech Republic to find a necessary normative basis for this practice (Pichrt and Morávek, 2014).

In Sweden, a law that would give special protection to workers who blow the whistle on serious wrongdoing in the workplace has been proposed by the Legislative Council and is due to come into force in January 2017. Employers who breach the legislation in relation to whistle-blowers would be liable to pay damages to the employee in question.

In France, ‘Loi Sapin II’ (named after Michel Sapin, Minister of Finance) is in its final stages of approval. The current version of the draft law defines a whistle-blower as ‘a person who reports or reveals, in the general interest and in good faith, a crime or an offence, a serious violation of the law or of a regulation, or facts which pose a serious risk to the environment or public health and safety’. However, the draft law is highly controversial. According to Nicole Marie Meyer from Transparency International France, ‘this bill would effectively mean a setback compared to the current situation’. A blog on Transparency International’s website points out that Transparency International has clear recommendations on what whistle-blower legislation should look like, including a broad definition of the term 'whistle-blower' to protect those who disclose information where there is a reasonable belief that the information is true. The blog criticises the current draft for creating ‘several pre-conditions for any protection, including proof that the whistle-blower must be motivated by public interest and that there is no intention of obtaining any personal advantage’.

Even in countries that already have comprehensive legislation on whistle-blower protection, some uncertainty remains about their application in practice. For example, do employees really benefit from such protection in their day to day lives in the enterprise? A Norwegian study on workers’ experiences, as well as some journalistic enquiries into whistle-blowing, seem to highlight the persistence of certain discrepancies between the legal text and the grassroots reality.

Bibliography

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About this article

This article is based mainly on contributions from Eurofound’s Network of European correspondents and on a literature review of academia and social partners’ documents.