EU whistleblower protection – what a difference a year will make
By the end of 2021, employees in the EU will be protected from whistleblowing retaliation by virtue of Directive (EU) 2019/1937 of the European Parliament. All employers with at least 250 workers will be obliged to provide safe reporting channels and procedures, and protection covers not only employees, but other stakeholders such as job applicants, ex-employees, journalists, and individuals who support the original whistleblower.
With the deadline of 17 December 2021 approaching, employers are advised to start preparing to implement the Directive now. The protection extends to the reporting of any breaches of EU law, including but not limited to tax fraud, public procurement, money laundering, environmental protection, consumer and data protection. Whistleblowers can choose to report internally or directly to a regulatory authority. If the whistleblower believes that it is in the public’s interest to be informed, the whistleblower protection extends to the public dissemination of information.
Five keys to an effective whistleblowing programme
Using well-established concepts from the implementation of the decade-old Dodd–Frank Act in the United States, we have highlighted some essentials for an effective whistleblowing programme such as:
1. Tone from the top supports whistleblowing
Senior management need to be trained on whistleblowing and must embrace whistleblowing as a means to mitigate reputational and financial risks. The Financial Conduct Authority in the United Kingdom expects financial services companies to appoint non-executive directors to champion whistleblowing programmes. An organisation that values ethical behaviour has a higher chance at long term viability and success.
2. Regular training for all levels of an organisation
Highlight the principles of the whistleblowing programme by providing specific and regular whistleblowing training for all members of the organisation. Having transparent processes that are communicated through regular training leads to trust in the programme.
3. Ease and transparency of the reporting process
Ease of reporting encourages employees to whistleblow internally (rather than making external reports at the very outset), which gives the organisation some control over the management of a potential corporate crisis. Automated processes paired with clear step-by-step guidance on how to make a report give stakeholders confidence that the whistleblowing programme's principles are being applied consistently, fairly, and uniformly across the entire organisation. Simple reporting in the informant's native language adds to the ease of reporting from an informant's perspective.
4. Assurance of security and anonymity in reporting
Security and anonymity can be achieved through encrypted systems and the preservation of data, including incorruptible report logs. Perhaps more importantly, the principle of non-retaliation against whistleblowers that was legislated in the Dodd–Frank Act (and which has now been legislated by the EU Parliament) is the cornerstone of all effective whistleblowing programmes.
5. AI-assisted technology
Virtual digital assistants are now capable of recognising and understanding languages, clarifying intents, perfectly recalling previous conversations, and translating speech to text, text to text and text to speech. They are human enough to carry on targeted conversations and yet robot enough that callers feel assured of reliable recording and that they will not be judged in sensitive situations.
In the United Kingdom, employees are protected from whistleblowing retaliation by the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 (PIDA). Workers have the right to take their cases to the employment tribunal if they have suffered retaliation as a result of whistleblowing, provided the disclosures have been ‘qualifying disclosures’ as defined under the PIDA. The PIDA does not require employers to set up any particular whistleblowing procedure and therefore is much less effective than the EU Directive. It is exactly this type of lackadaisical and fragmented legislation throughout EU member states that drove the European Parliament to enact its directive to protect whistleblowers in all organisations.
