Imminent: the new EU Whistleblower Protection Directive

07 December 2021      Ashley Shelbrooke, HEPA and Project Specialist

The EU passed the Whistleblower Protection Directive on 16 December 2019, which stated that by 17 December 2021 employers are to:

  • introduce internal channels and procedures, including ensuring that the whistleblower’s identity is kept confidential;
  • prohibit all forms of retaliation against whistleblowers;
  • identify competent authorities to receive, provide feedback and progress reports; and
  • implement effective and proportionate penalties for anyone who retaliates against whistleblowers, obstructs the reporting of a disclosure or otherwise breaches the duties outlined in the Directive.

Whistleblowing is generally covered in the UK by the Public Interest Disclosure Act of 1999.  Post Brexit the UK is no longer required to implement the EU Directive, however the Trade & Cooperation agreement does require the UK to uphold EU levels of employment protection.  Field Fisher note some aspects of the Whistleblower Protection Directive which are not currently covered by the Public Interest Disclosure Act; examples include:

  • widening the scope of individuals who are afforded protection, such as to include self-employed contractors, volunteers and non-executive directors;
  • requiring employers with 50 or more employees to set up internal channels and feedback procedures;
  • introducing standards for how regulators maintain confidentiality, provide feedback and follow-up on any disclosures;
  • implementing provisions to protect whistleblowers from potential liability, such as breach of confidence, defamation and data protection; and
  • providing legal aid for whistleblowers seeking to bring employment-related claims.

Furthermore, DLA Piper highlight areas that can be reported under the Whistleblower Protection Directive; this includes public procurement, financial services, products and markets, and prevention of money laundering and terrorist financing.

The protections of the Whistleblower Protection Directive look to include not just employees, but contractors and suppliers as well.  In addition to this there is a “reverse burden of proof” for retaliation; in other words it is no longer up to the person or supplier to prove that they faced retaliation for whistleblowing but instead the organisation has to prove that they didn’t retaliate.

If you have operations internationally you may wish to monitor the local implementation of the Whistleblower Protection Directive and its potential impact on your operations.

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