One of the draft Directive’s most significant features is the shield on civil and criminal liability when the whistleblower makes a protected report. The Council’s proposal (Article 15, at 50) qualifies that there only is immunity if the whistleblower “had reasonable grounds to believe that the reporting or disclosure was necessary for revealing a breach pursuant to this Directive.”
This unprecedented new requirement would mean it is not safe to have engaged in “protected” speech. The whistleblower also must properly guess whether his or her disclosure was indispensable, and then again whether a court would agree. Otherwise, the whistleblower will be defenseless against criminal or civil prosecution.
It would be unprecedented in global whistleblower law to impose a second test for protection against retaliation – the importance of the whistleblower. To date protected speech always and only has depended on the credibility and significance of the whistleblower’s disclosure.
WIN are pleased to publish the first of three video bulletins about serious problems with the EU draft Directive on whistleblowing put together by Tom Devine and the Government Accountability Project (GAP). These videos and the accompanying text summarise key issues in the proposed directive and offer robust solutions to improve the Directive and enhance whistleblower protection in Europe.
The remaining videos will be published throughout the day so keep your eye on our website and Twitter feed!
The Directive includes a new precondition to qualify for protected speech and trigger anti-retaliation rights. It no longer will be enough to prove a reasonable belief of disclosing misconduct. The employee also must first prove that the knowledge or evidence was “lawfully acquired in the context of his or her work-related activities.” (Article 3 Definition, at 36).
This additional requirement for protection would be unprecedented in global whistleblower laws. Normally the issue is considered as part of an employer’s independent justification in the reverse burden of proof. This new structure means the whistleblower’s methods will be put on trial as the opening issue in every retaliation case. Whistleblowers would have to win that battle first, even to challenge retaliation.