Blowing the whistle, or making a protected disclosure, can often be seen as a negative by organisations who can feel the individual is a trouble-maker or think that this is an additional administrative matter for them to deal with, rather than simply carrying on their day-to-day business. Whistleblowing, however, should be seen as a positive because it allows organisations to become aware of concerning matters that may be taking place away from management view. Indeed, over recent years whistleblowing has led to the uncovering of major scandals, including tax evasion, data breaches and industrial wrongdoing.
To increase the protection afforded to whistleblowers across the European Union (EU), the European Commission has proposed a new law. The law will apply across various areas of EU law including: financial services; public health; privacy; consumer protection and environmental protection.
Under the new legislation, all organisations with an annual turnover of over €10 million or more than 50 employees will be required to set up an internal whistleblowing procedure. This must include:
- clear reporting channels which ensure the confidentiality of the whistleblower, whether these are internal or external
- a reporting system consisting of three tiers – from internal reporting, reporting to competent authorities to public reporting if no appropriate action is taken through the other channels
- an obligation to provide feedback to the whistleblower within three months, and
- effective protection and prevention of retaliation against the whistleblower.
Where the whistlwblower does suffer retaliation, the proposed legislation will reverse the burden of proof to require the organisation to prove they are not acting in retaliation against the individual for blowing the whistle.
Alongside the obligations on the organisation, the new law provides support for organisations against malicious disclosures. There are safeguards built into the proposal to discourage abuse and prevent unjustified damage to the organisation’s reputation.
As a draft piece of legislation, the whistleblowing law will go through the EU process of review and revision, usually over a period of up to two years. This makes it likely the whistleblowing protection will only take effect once the UK leaves the EU, however, the adoption of the increased protection could be a requirement of any future deal.