WIN’s Legal Briefs have been updated to include a response to the EU Council which is now scrutinising the draft directive. This update highlights growing concern that the much welcome improvements to the EU draft directive recently voted through the Parliamentary Committee will not replicated by the EU Council.
WIN is grateful to Tom Devine, Legal Director of the Government Accountability Project in Washington DC, for his assistance in drafting this latest update.
The main problem, which the EU Council seems set to embrace and which was recently rejected by the JURI Committee in its Report, is that the draft directive reinforces employer control over the reporting of wrongdoing. It does so by making it a requirement for all those in a work-based relationship to report their concern to their employer first. While reporting internally will remain the default for the vast majority of whistleblowers and it makes sense for employers to do all they can to encourage their staff to speak up early, it is dangerous to make it a legal obligation.
Further, making staff use the channels that employers “officially” set up is almost worse. The vast majority of whistleblowers raise concerns as a normal part of doing their jobs and typically it is only as a result of the response they get, that they realise that something is really wrong. Formal reports of wrongdoing via official employer channels set up for that purpose will only ever capture the tip of the information the Directive seeks to protect; the iceberg is the routine reports of discovered problems though the supervisory chain of command and in sensitive assignments such as audits, inspection reports and reports of investigations. Very few people who report problems are doing so specifically to denounce misconduct or as dissidents.
WIN has drafted this Legal Brief in response to the EU Council to help Council members understand why it is important to remedy these structural problems in the draft directive as a matter of urgency.
We are also pleased to offer it to anyone interested in the protection of whistleblowers and in the detail of the debates that are happening in Europe right now.
See WIN‘s other Legal Briefs, including briefs on anonymity and remedies, in the WIN blog posted on 17 October 2018.