The EU Justice and Home Affairs Council formally adopts new Whistleblowing Directive

Dentons

The EU Justice and Home Affairs Council has formally adopted a Directive of the EU Parliament, which aims to harmonise the protections available for EU whistleblowers who report breaches of EU law.

The Directive comes after the European Commission carried out a consultation to collect information, views and experiences on the benefits and drawbacks of whistleblower protection. 

The results of the consultation

The Commission sought views on the following questions:

  • What is considered important for effective whistleblower protection?
  • Are problems arising both at national and EU level the result of gaps and weaknesses in existing whistleblower protection, and is there a divergence of protection across the EU?
  • Is there a need for minimum standards of protection?

The consultation took place between 3 March and 29 May 2017 and the results revealed some startling statistics:

  • 85% of respondents believed that workers very rarely or rarely report concerns about threat or harm to the public interest;
  • only a few member states have legislation protecting whistleblowers in place, resulting in fragmented and inadequate protections across the EU;
  • the most common factors selected by respondents as to why whistleblowers were not reporting concerns were a fear of legal consequences (80% of individual respondents and 70% of organisations); a fear of financial consequences (78% of individual respondents and 63% of organisations); and a fear of getting a bad reputation (45% of individual respondents and 38% of organisations); and
  • 96% of individual respondents and 84% of organisations were supportive of the Commission's proposal to establish legally binding minimum standards on whistleblowing protection in EU law.

How will the new EU Directive impact the current position in the UK?

The UK was one of the countries that the Commission identified as already providing comprehensive protection and much of the content of the Directive is already contained in UK domestic law.

Brief summary of the law in the UK

In the UK, the whistleblowing protections can be found in sections 43A to 43L of the Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998).

The legal framework essentially creates two levels of protection for whistleblowers:

  • firstly, there is protection against dismissal. If the reason, or principal reason, for the dismissal of an employee is that they have made a qualifying "protected disclosure", the dismissal will be automatically unfair – even if the employee does not have two years' service; and
  • secondly, there is protection against detriments. If a worker is subjected to any detriment on the ground that they made a protected disclosure they have the right to seek compensation from a tribunal.

Demonstrating that the employee has made a qualifying disclosure is the first step in establishing protection under the whistleblowing legislation.

A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in section 43B(1)(a) to (f) which are:

  1. that a criminal offence has been committed, is being committed or is likely to be committed;
  2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which s/he is subject;
  3. that a miscarriage of justice has occurred, is occurring or is likely to occur;
  4. that the health or safety of any individual has been, is being or is likely to be endangered;
  5. that the environment has been, is being or is likely to be damaged; or
  6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

A worker does not have to prove that the facts or allegations they are disclosing are true, or that they are capable in law of falling within one of the categories of wrongdoing listed.

So long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal's view, objectively reasonable, it does not matter if the belief later turns out to be wrong.

Finally, in order to qualify for protection under UK law, the disclosure must also be made in the right way.

The UK legislation very much encourages internal disclosure to the employer as the primary method of whistleblowing with wider, external disclosure only being allowed when more stringent conditions are met.

The EU Directive largely reflects these key principles. However, there are a couple of key differences between the provisions of the UK legislation, which gives protection to those making disclosures relating to breaches of UK law, and the Directive, which relates to breaches of EU law. 

What are the key differences between UK law and the EU Directive?

Under the Directive, organisations with 50 or more employees will be required to establish internal reporting channels and respond to reported concerns within three months (or six months in complex cases).

Secondly, whistleblowers will also have the right to make an external disclosure to a competent national authority or, in limited cases, a public disclosure.

Member states will have two years, from the date the Directive enters into force, to adopt the Directive into national law.

What about Brexit?

It is not yet clear whether the Directive will be formally implemented in the UK, or whether domestic legislation may be amended to incorporate these same rights in any event to ensure that the UK keeps pace with European worker rights. The timing of Brexit, any transition period and the political situation overall are all likely to have a significant bearing on this.

Conclusion

Whistleblowing is becoming more and more of a hot topic. Over recent months, it has featured regularly in the press, with high-profile cases such as Gilham v. Ministry of Justice reaching the Supreme Court.

Employers would be well advised to implement a whistleblowing policy if one is not already in place. They should also consider providing training to managers so they better understand the protections afforded to staff who raise legitimate concerns during their employment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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