The Duty Speech Loophole: how the EU Whistleblower Directive could backfire against its own objectives

Tom Devine, Legal Director of the Government Accountability Project (a co-founder of WIN) explains that unless a serious “technical contradiction is resolved [the EU draft directive] could backfire against its own objectives, against employers and especially against whistleblowers”. He urges the European Council to avoid violating fundamental global best practices in whistleblowing laws by adopting the precedents of EU member states of Ireland and the Romanian Presidency Romania where no such mandatory internal reporting through designated channels exists.

Reporting internally should be protected easily – organisations should want to learn about any and all potential problems early and promptly with few barriers for staff to speak up safely. However, according to the draft directive, staff will only be protected from retaliation if they use the official channels employers will be required to set up. This misunderstands the essence of all whistleblowing laws to create safe channels for the free flow of information in order to responsibly exercise authority.

Good employer whistleblower arrangements are those that support rather than replace regular communications that occur as part of everyone’s job responsibilities within any business or organisation. Instead, the EU draft directive seeks to limit protected reports within the employment relationship to a single designated channel. This risks undermining employers’ management structures and risk management systems, leaves whistleblowers defenceless if they are retaliated against for doing their jobs, and diverts information away from those who need it the most.

After 40 years of advising whistleblowers and being at the forefront of laws to protect whistleblowers in the United States and around the world, Tom Devine’s expertise is grounded in the reality of whistleblowing and what makes good organisations even better. The European Council should be listening.


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