EU Whistleblower Protection – Compliance Guide: Part 2 – Disclosures and Protection

The disclosing of information and the protection of the reporters of this information is the key subject of the Whistleblowing Protection Directive.

In the FIRST part of this series, we covered the aspect of scope and coverage - which entities are impacted by the Whistleblowing Protection Directive and eventual Malta corresponding Act.

This next part will focus on what are protected disclosures, who can report wrongdoings and what protection is afforded to these individuals.

What is a Protected Disclosure?

Whistleblowing is the act of raising a concern about a wrongdoing or a breach within an organisation or reporting an improper act. These improper practices or breaches means acts or errors that are unlawful and a criminal offence against the purpose of other rules and EU Directives as set out in Article 2 of the Directive. In short, Whistleblowing is the disclosure of the following information:

  • Criminal offences;
  • Failing to comply with any legal obligation or regulation;
  • Miscarriage of justice
  • Endangerment of the health and safety of an individual or an animal;
  • Environmental damage;
  • Unfair discrimination; and
  • Deliberate concealment of the above.

This information includes information, including reasonable suspicions, about actual or potential breaches, which occurred or are very likely to occur within an organisation. But not all disclosures are protected disclosures. In accordance with the Whistleblowing Protection Directive, a disclosure of information will only be acknowledged as protected if the reporting individual:

  • had grounds to believe that the information on breaches reported was true at the time of reporting and that such information fell within the scope of the Directive;
  • had reported internally, externally or made a public disclosure in line with the applicable articles (in line with the Articles indicated in the Directive).

The Whistleblowers Act imposed by Malta (Protection of the Whistleblower Act (CAP. 527) of 2013) further states that for the disclosure to be a protected disclosure, it should have the following additional requirements:

  • the disclosure was made in good faith; and
  • the disclosure is not made for purposes of personal gain.

Who can make Protected Disclosures?

Any reporting person who works in an organisation in the public or private sector to which the Whistleblowing Protection Directive applies can make a protected disclosure. The reporting person must report or publicly disclose information on breaches acquired in the context of his or her work-related activities, irrespective whether current or past activities.

The work-related context also refers to future working relationships, which means that the whistleblower will also be offered protection if the individual reports any breaches of which he/she had become aware during the recruitment process or other pre-contractual negotiations.

Furthermore, through this Directive, protection not only exists for employees who report their concerns, but also for job applicants, colleagues and relatives of the reporting person, former employees, supporters of the whistleblower and journalists.

What Protection is provided?

The Directive has been implemented to ensure that Member States employ measures in order to protect all forms of retaliation against whistleblowers by their employers and enforce that these actions are prohibited. These forms of retaliation include actions or the threat of actions such as suspension, dismissal, withholding of training, wage reduction, unfair treatment, medical referrals and similar measures (the full list of protected actions are listed in Article 19 of the Whistleblowing Protection Directive).

These whistleblowers are also provided protection in the following forms:

  • providing access to support measures for reporting persons, in particular free legal advice, financial assistance or psychological support;
  • introduction of anti-retaliation measures, e.g. ensuring that reporting is not considered to be in breach of any restrictions on disclosure of information, and does not result in any kind of liability; or by placing the burden of proof on the employer whether it is determined that there was any retaliation towards the employee;
  • safeguarding the reporting person’s right to an appropriate remedy and fair trail, as well as protection of identity while the investigation is ongoing;
  • establishment of penalties for persons and entities that hinder or attempt to hinder reporting, retaliate against a whistleblower, bring vexatious proceedings against such person or breach the duty of confidentiality.

Our next post in this series will relate to the role of the Whistleblowing Reporting Officer (or Unit) as well as its legal requirements and obligations.  

For more insights, support and additional information on the application of Whistleblower Protection Directive, training and awareness of your employees rights and the implementation of a Fraud Hotline or reporting services, reach out to us by contacting [email protected] or [email protected]