Whistleblower - what are the employer's obligations?

Published: 
20.7.2022 21:11
Whistleblower Protection Directive and employer's obligations

In connection with the entry into force of the Directive on the protection of Whistleblowers of October 23, 2019, employers were faced with challenges related to providing Whistleblowers in organizations with the possibility of reporting irregularities. What exactly are employers' obligations under the new legislation?

To which employers does the Directive apply?

From December 2021, the Directive (EU) 2019/1937 of the European Parliament and of the Council covers public institutions that employ over 50 people or municipalities with more than 10,000 residents. In the case of private entities, the regulations must be applied by those with more than 250 employees. Importantly, the directive also applies to entities from the financial market and those dealing with AML/CF, regardless of the number of employees and the sector.

It is worth noting that the provisions of the European Union regarding the protection of Whistleblowers do not end there, because from December 2023 also all organizations in the private sector that employ 50-249 employees will have to implement appropriate regulations in the structure of their working environment.

What are the employer's obligations?

The Whistleblower Protection Directive provides for many new obligations for employers. These include duties:

  1. Ensure a safe, effective, and compliant with the requirements of the Whistleblower Directive an internal channel for receiving and managing reports.
  2. Guaranteeing Whistleblowers the protection of the confidentiality of their identity and counteracting attempts to retaliate against them.
  3. Creating procedures and regulations that are written transparently and available to all employees.
  4. Conducting training in connection with the emergence of an internal channel in the organization to handle tickets and inform employees about this fact.
  5. Appoint an impartial and independent person who will be responsible for verifying reports and taking remedial action.
  6. Confirmation of the Whistleblower's acceptance of his application within 7 days of its receipt.
  7. Systematic record keeping of tickets according to the principles set out in the Directive.

What is the protection of the Whistleblower after submitting the report?

According to the applicable provisions of the directive, the person who reports the irregularities, in which he or she was an indirect or direct witness, is not liable for breach of the confidentiality obligation, defamation, or infringement of copyright and trade secrets. It is worth emphasizing, however, that the exemption from the above-mentioned legal provisions is available only to persons who had reasonable grounds to report to reveal irregularities.

The European Union Directive 2019/1937 provides Whistleblowers with full protection and protection against retaliation, which could be committed, inter alia, by co-workers, persons concerned, or the employer. Retaliation includes:

  1. Termination of the employment relationship with the Whistleblower.
  2. Salary reduction.
  3. Demotion from the position.
  4. Being forced to take unpaid leave.
  5. Change of place or hours of work.
  6. Suspension or removal from training.
  7. Issuing a negative assessment of the results.
  8. Application of a disciplinary measure.
  9. Refusal to convert a fixed-term employment contract into one for an indefinite period.
  10. Unlawful deprivation of a previously agreed bonus or employee award.
  11. Undertaking mobbing or discriminating actions against the employee.

Moreover, the Directive provides for a presumption principle that presupposes that the damage suffered by the Whistleblower is the result of retaliatory measures. The obligation to prove that the proceedings were conducted for legitimate reasons and that the irnature had nothing to do with retaliation rests with the person who took the actions causing the damage.

To sum up, in connection with the entry into force of the provisions on the protection of Whistleblowers, employers have many new obligations. To meet the challenges and comply with the guidelines, they need an effective tool that will act as an internal channel for managing reports and help them handle them efficiently. Whistleblower is a software that not only complies with the provisions of the Directive of the European Parliament and of the Council (EU) but also protects the confidentiality of the identity of Whistleblowers.