David Lewis, Professor of Employment Law in the School of Law, recently attended a workshop for invited experts organised by the European Commission to discuss the proposal for a Directive on measures to protect whistleblowers in the EU. Here, he shares some of the issues explored in the workshop, along with his own recommendations for future policy.
To my knowledge, the possibility of a European Commission Directive on Whistleblowing was first mentioned at a meeting of the European Parliament’s Budgetary Control Committee in May 2011. More recently, the Green Party has been campaigning for legislative intervention and circulated a draft document. In the light of mounting pressure, the European Commission committed itself this year to assessing the scope for horizontal or further sectorial action at EU level to strengthen whistleblower protection. As part of this process the Commission procured an impact assessment study which has included:
- an online public consultation to gather input from interested stakeholders and the public
- a questionnaire addressed to relevant stakeholders that solicited more specialised input
- a workshop with eight international experts earlier this month to which I was invited.
The purpose of the workshop was to inform the impact assessment study’s problem analysis and its appraisal of the expected impacts of a number of potential policy options. The event was attended by officials from various parts of the European Commission and the topics identified for discussion were:
- problem characterisation (national and EU level)
- components of best practice solutions
- appraisal of potential options for EU policy.
For progress to be made, the first and perhaps the major issue that needs to be resolved is whether, having regard to the principle of subsidiarity, there is a legal basis for EU intervention. This matter is currently being discussed by lawyers at the Commission and was not the subject of analysis at the workshop. In what follows, I will outline some of the best practice solutions that were debated.
One key concept that pervades much international legislation on whistleblower protection (including the UK) is “the public interest.” However, this term is difficult to define and creates uncertainty for both potential whistleblowers and their advisers. Questions might be asked about the relevance of a public interest test in the private sector and it was noted that many national and international employers do not make this test part of their arrangements. Indeed, it might be argued that such employers want disclosures of information about suspected wrongdoing to be made in the interests of stakeholders/shareholders.
Another subject for discussion was that of competing interests. For example:
- the interest in maintaining a company’s business reputation and commercial interests
- the interest in maintaining confidence in public administration
- professional secrecy obligations (e.g. legal and medical privilege)
- data protection
- the rights of alleged wrongdoers
- core State interests such as national security and defence.
In relation to the rights of alleged wrongdoers, it was pointed out that reasonable suspicions may prove to be unfounded but to promote whistleblowing workers should not be penalised for raising concerns unless they knowingly supplied false information. As regards international relations and intelligence matters, reference was made to the Tshwane principles (“The Global Principles on National Security and the Right to Information”) which suggest that special provisions should exist for whistleblowing in these circumstances. In the UK, the Official Secrets legislation currently criminalises whistleblowing by those subject to it.
Protection against retaliation
Unsurprisingly, a major topic for consideration was protection against retaliation. Among the questions addressed were:
- what are the best ways of ensuring confidentiality and channels for anonymous reporting?
- could the common types of retaliation against whistleblowers (e.g. suspension, demotion, salary cuts, loss of promotion opportunities, punitive transfers, boycotting) constitute harassment?
- how to protect whistleblowers against civil and criminal proceedings
- the personal liability (in criminal and/or civil law) of those who retaliate against the whistleblower. Should there be a threshold for financial compensation? What could be the options for interim relief to suspend dismissal e.g. summary procedures? Should they be a right; right to reinstatement in the workplace?
Corporate whistleblowing best practice
The penultimate session focused on best practice in corporate whistleblowing policies and procedures. Issues covered included:
- how to facilitate the reporting of wrongdoing (e.g. documenting follow-up procedures in internal policies; periodic compilation of systematic information about the reports received, the outcome and steps to be taken; defining responsibilities and timescales for internal investigations; defining how the outcomes of the investigation will be followed-up)
- the protection and support offered to staff that report wrongdoing (e.g. access to independent confidential advice and information on whistleblower rights; protection in cases of harassment/retaliation by management and/or colleagues; access to counselling services or other psychological support; assistance or financial support)
- the balance to be struck between obligation and encouragement of companies to adopt whistleblowing arrangements
- whether policies and procedures encourage or oblige employees to blow the whistle.
Finally, there was a brief discussion about possible options for EU action. At this stage it is unclear whether a Directive will be feasible but, if it is not, I would like to see a formal Recommendation. In my view, the interests of the EU, member states, private companies, trade unions and individuals would be promoted if all employers were required to: introduce and maintain effective procedures to facilitate whistleblowing; investigate allegations of wrongdoing and take remedial action where appropriate; and protect whistleblowers against all form of retaliation. In addition, Member States should create an independent agency to oversee national arrangements and to monitor and review their effectiveness.