Despite the value that whistleblowing brings to an organisation, whistleblowers risk facing retaliation when reporting misconduct and breaches in law. They can lose their employment, confront legal charges, face an anti-whistleblowing assault or sacrifice their reputation, to name a few.
The European Union (EU) Whistleblower Directive formalises and legalises the protection of whistleblowers. It demands that liable entities implement related policies and establish anonymous whistleblowing platforms. Further, the directive makes anti-whistleblowing retaliation illegal and recommends that member states dole out sufficient penalties to those who retaliate against whistleblowing.
The Framework
The EU Directive has outlined clear and concise measures of protecting whistleblowers. These consider various areas where the whistleblower might face challenges.
Here are 5 types of protective measures listed in the regulation:
1. Legal advice
The directive states that whistleblowers should receive free legal advice to help in resolving legal issues arising from the whistleblowing. This will give reporters access to in-depth information on relevant processes and actions, free of charge.
2. Remedial measures
Whistleblowers risk facing retaliation as described above. The directive considers the risks whistleblowers must overcome to report misconduct. Thus, it secures measures that offer solutions against retribution.
For example, an employee could receive temporary leave so that they do not have to encounter retaliatory abuse at work.
3. Reversal of the burden of proof
The directive also subverts the burden of proof. It places the onus on the individuals or entities responding against a whistleblower rather than the whistleblower themselves. The retaliating party needs to illustrate that their response is not anti-whistleblowing itself.
This is a marked change from a history in which the whistleblower had to prove how they’re mistreated as a result of their report.
4. Protection in judicial proceedings
This is another legal type of protection for whistleblowers. The EU regulation defends against legal action taken outside of the reporter’s workplace. This includes copyright infringements, secrecy breaches and/or defamation lawsuits.
5. No liability
The last whistleblower protection defends the act of disclosure.
The directive states that organisations should not have the ability to discourage reporting, withhold whistleblower protection or punish reporters.
This means whistleblowers aren’t considered to be infringing on:
- prior workplace contracts
- non-disclosure agreements
- confidentiality clauses
As long as the whistleblower reveals information related to the misconduct, they must bear no liability relating to contracts or agreements like those described above.
Final Thoughts
Whistleblower protection considers the impact of whistleblowing on the individual who is reporting misconducts. It takes the following possibilities into account:
- legal retaliation
- workplace assault
- mistreatment and isolation
- potential loss of work
What it does not address is the risk whistleblowing poses to the individual’s livelihood and well-being.
However, the regulation is a valid and commendable effort to defend and assure whistleblowers. Certainly, there are additional measures the law provides. This includes mandating anonymous reporting and making whistleblower policies and channels compulsory.
Thus, individuals can look to this regulation as a guide and defender if or when they decide to report.
Is your organisation looking for a whistleblowing channel that is in line with the new directive, ticks all the boxes for anonymity, enables real dialogue, has built-in investigation features and more? Have a look at our Falcony | Observe module.
We are building the world's first operational involvement platform. Our mission is to make the process of finding, sharing, fixing and learning from issues and observations as easy as thinking about them and as rewarding as being remembered for them.
By doing this, we are making work more meaningful for all parties involved.
More information at falcony.io.
