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EU to legislate for whistleblower protection

The EU Commission intends to enact new legislation to protect whistleblowers across the EU.

The Commission is acting because of the fragmentation of protection for those who report employer malpractice across the EU (Germany, for example, has no specific whistleblowing protections).

The draft directive sets out ‘common minimum standards’ to protect whistleblowers against retaliation for reporting on breaches in specific EU policy areas, such as financial services, product safety and protection of privacy.

Disclosures will have to be ‘in the public interest’ and facts must be believed to be true. Workers will be expected to raise concerns internally first (unless there is good reason not to do so) to benefit from protection.

Whistleblowers (or ‘reporting persons’ as the draft directive terms them) will:

  • have access to interim relief (i.e. compensation before legal action is concluded to alleviate financial hardship during prolonged litigation)
  • have their anonymity preserved
  • have protection against litigation for breach of contract/ confidentiality, and
  • benefit from a legal presumption that their detrimental treatment arises as a result of disclosure (i.e. reversal of the burden of proof)

There will be penalties and other sanctions against employers who dismiss, harass or impose other detriments on whistleblowers who make legitimate disclosures. All public-sector employers and many in the private sector will be required to set up clear, accessible reporting mechanisms which facilitate the disclosure of whistleblowers’ concerns. Employers will be required to provide feedback to whistleblowers regarding developments or progress within three months.

These proposed measures go further than UK whistleblowing protections in some key respects. The draft directive now enters the complicated and often drawn out EU legislative process. It’s likely to be 18 months to 2 years before we see a final text. As such, it’s unlikely it’s unlikely to come into force until after the UK leaves the EU. However, the UK government may find that it will form part of core EU standards that must be adopted to secure relevant trade deals post-Brexit.