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Stay Abreast of Whistle-Blower Protections in the EU
 

By lus Laboris  3/3/2014
 
 

Whistle-blowing has become a much talked about and widely debated subject in recent times. While it can be seen as a key instrument in assisting authorities and regulators with identifying any criminality on the part of employers and employees, legislation in this area across the European Union has so far been somewhat limited.

A report published by anti-corruption NGO Transparency International in November 2013 on whistle-blowing practices in 27 European Union countries, showed that only four (Luxembourg, Romania, Slovenia and the United Kingdom) had advanced legal frameworks for whistle-blower protection. The report noted that of the 23 remaining countries, 16 offer partial legal protections for whistle-blowers, and the remaining seven either have extremely limited or nonexistent protection.

The report called for the European Commission to propose comprehensive legislation on the protection of whistle-blowers in both public and private sectors. The Commission has, however, previously rejected requests from to introduce EU whistle-blower protection laws (most recently in October 2013).

Nonetheless, changes are taking place across Europe.

United Kingdom

The United Kingdom’s “advanced” classification in the Transparency International report is unsurprising. In 1999, the U.K. became the first EU member state to pass comprehensive whistle-blower legislation, in the form of the Public Interest Disclosure Act (PIDA).

In addition to being the foremost example of whistle-blower legislation in the European Union, it is still widely considered to be the strongest. PIDA has set an international standard for whistle-blower protection, which several countries (such as Australia, Japan and South Korea) have emulated.

PIDA offers protection to the vast majority of workers in the U.K., including agency workers, freelancers and trainees. It provides protection against detrimental treatment and dismissal as a result of blowing the whistle, and is supported by an uncapped compensation system; those who are successful in whistle-blowing claims can be awarded significant sums (the highest recorded being £5m according to U.K. whistle-blowing charity, Public Concern at Work). There is no minimum service requirement to make a claim, so a worker could lodge one on their first day on the job. 

However, those making disclosures are only protected if they make a “protected disclosure.” This is a disclosure of information that in the reasonable belief of the worker making it tends to show that one or more of the six “relevant failures” outlined in the Employment Rights Act (ERA) has occurred or is likely to occur, and it must be made in accordance with one of the six specified methods of disclosure. These “relevant failures” are criminal offences, failure to comply with legal obligations, miscarriages of justice, health and safety issues, environmental damage issues and deliberate concealment of information regarding the above. 

The method of disclosure depends on to whom the disclosure is to be made. A disclosure will generally be protected, without condition, if it is made to the worker’s employer (such disclosures made prior to June 25, 2013, had to be made in good faith in order to be protected). However, when making a disclosure to a party other than the employer, responsible person, legal advisor, government minister or prescribed person, for example, to the police or media, rigorous conditions will apply.

If a whistle-blower is subsequently treated detrimentally or dismissed in the workplace and brings a claim, an employer will have to prove that this action was not motivated by the employee’s revelations. If an employer is unable to, a dismissal will be judged automatically unfair. This reverse burden-of-proof has since become an internationally accepted paradigm, although other EU member states have yet to enshrine the principle in national legislation. France is the only EU jurisdiction where an analogous precept applies.

On June 25, 2013, various changes were made to the ERA which impacted U.K. whistle-blowing law. The 2013 changes introduced the requirement that disclosures must, in the reasonable belief of the worker, be “in the public interest” and removed the requirement that disclosures had to be made in “good faith” (while empowering tribunals to reduce compensation if a disclosure is found to have not been made in good faith).  Further reforms to whistle-blowing are currently being considered by the government and announcements on this are anticipated later this year.

Italy

Italy does not, at present, offer any specific legal protection for whistle-blowers. Nevertheless, calls for legislation have grown in intensity in recent years, and there have been some precedential developments, and one key regulatory improvement. In October 2012, the General Law on Public Sector Employment was amended to afford legal protection to public office whistle-blowers.

However, whistle-blowers can still face prosecution or civil suits if their disclosures are found to have defamed individuals or institutions, and there is as yet no indication that the protections enshrined by the act will be extended to private-sector employees. Currently a draft proposal for further legislation on the subject sits in Parliament, but has not been discussed yet by the Assembly.

Nonetheless, several companies in Italy (both national and international) have adopted group policies for employees and attach international documents on whistle-blowing to their standard contracts. Those documents often directly reference key foreign legislation such as the U.S. Sarbanes-Oxley Act and the U.K.’s PIDA.

In precedent terms, while some whistle-blowing cases have been brought to trial, in general, these are dismissal cases (wherein a whistle-blower argues they were dismissed because of disclosures they made). Courts have generally ruled according to the specific facts of each case, balancing the content of the disclosure (often in the form of a complaint to authorities) with the facts verified during the trial. Hopefully, if a disclosure is found to be legitimate, and made in good faith, Italian courts have deemed the dismissal unfair; if, on the other hand, revelations were found to be fraudulent, or disclosed for malicious reasons (intent to harm the company), the courts have confirmed the dismissal.

France

France’s first major move toward enshrining legal protection for whistle-blowers came in November 2007, with the passage of a comprehensive anti-corruption law. Included within this law are provisions which prohibit discrimination against private-sector employees who reveal corruption committed by co-workers or their organization. In 2013, France passed three new laws which included whistle-blower protections.

The first of these was in the area of public health and the environment. The Law of April 16, 2013, prohibits discrimination against employees for having disclosed information which reveals a serious risk to public health and/or the environment. The Law of Oct. 11, 2013, is the first French law to protect whistle-blowers who are public servants, but is limited to disclosures or testimonies related to conflicts of interest pertaining to specific types of public servants with significant influence. The third is the Law of Dec. 6, 2013, which protects all private-sector employees and public servants who have disclosed or testified, in good faith, to facts constituting a misdemeanor or a crime that he or she became aware of in the performance of his or her duties. There is also a bill currently before the National Assembly on the professional rules, rights and obligations of public servants which includes whistle-blower protection provisions.

All four of the laws mentioned above relate to facts that a whistle-blower becomes aware of in the performance of his or her duties and generally protect whistle-blowers from discrimination in relation to hiring, access to internships or training and protection from sanctions, dismissal or being the subject of other direct or indirect discrimination, such as in relation to remuneration, training, redeployment, assignment, qualification, classification, professional advancement, transfers or contract renewal. However, with the exception of the Dec. 6 law, these protections specifically pertain to disclosures made to the persons or entities listed by the law such as the employer or a legal or administrative authority. Disclosures made under the Dec. 6 law may be made to any third party, including the press.

All of these whistle-blower laws also provide for a reversal of the burden of proof in case of litigation brought by the whistle-blower. Where the whistle-blower is able to either establish or present facts that permit a presumption that he or she disclosed or testified, in good faith, to facts related to or constituting corruption, a public health or environmental danger, a conflict of interest or a misdemeanor or crime, the burden of proof shifts to the defendant to prove that its decision was justified by objective facts not related to the whistle-blower’s disclosure or testimony. These laws also provide that any act in violation of their whistle-blower protection provisions is void by operation of law.

The Supreme Court has not yet issued a decision in relation to the 2007 or the 2013 laws.

Stay Alert

In October 2013, Andrej Hunko of Germany’s Die Linke party estimated that it may take up to two years before a whistle-blower protocol is included in the European Convention of Human Rights. However, while discussions within the EU Commission and associated Directorates General remain at an exploratory juncture at this stage, it is important that all HR professionals working within the borders of the European Union stay abreast of developments in this regard, and ensure measures are undertaken to properly equip themselves to meet the challenges that changing whistle-blowing legislation may pose. Even if the European Commission is unforthcoming, there have been notable moves in individual member states.

Best practices for international employers include:

  • Understanding the law on whistle-blowing and any procedures governing the implementation of a whistle-blower policy in the countries you operate in.
  • Deciding on your approach to whistle-blowing. It is advisable to encourage and support it but some employers may decide to do the minimum required, i.e., ensure they comply with the relevant laws but nothing more.
  • If adopting a whistle-blowing policy, decide whether it should be a global one or tailored for each country. A global policy will allow more consistency (which is helpful in a business where employees regularly transfer) and sends out a strong, supportive message but employers will need to check that it does not conflict with local laws and should note that it is likely to provide employees in certain countries with more protection than they are entitled to.
  • Ensuring the policy is clear in terms of its purpose, process and protection. You may wish to appoint a whistle-blowing officer to whom all reports should be made and could also consider setting up an anonymous whistle-blowing hotline. Keep whistle-blowing policies and procedures up-to-date.
  • Ensuring that all staff, or at least all management, is trained on the policy, particularly in terms of how it operates and the consequences of victimizing or retaliating against a whistle-blower. Roll out training on a regular basis.
  • Investigating whistle-blowing and retaliation concerns promptly and keeping the whistle-blower updated on progress. However, if the protected disclosure/whistle-blowing concern actually amounts to a grievance, consider whether the grievance policy and process should be used instead.

lus Laboris is a global alliance of leading employment and HR law firms.

This article was written by Kathryn Weaver of Lewis Silkin LLP, based in the U.K.; Guillaume Bordier and Kaela Ji Eun Kim of Capstan, based in France; and Valeria Morosini and Marco Sideri, of Toffoletto De Luca Tamajo e Soci, based in Italy.

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