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.
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.
30/12/2018 – WIN is pleased to highlight this blog by Tom Devine, Legal Director of the Government Accountability Project (GAP). GAP is one of the co-founders of WIN and has been working with WIN and WIN’s members and associates to promote robust and sensible whistleblower protections in Europe. The draft directive offers an opportunity for Europe to lead the way internationally. However, there are some serious pitfalls in the current proposal and the risk of even greater problems if some of the more damaging political counter-arguments are accepted. This blog was originally published by Eurocadres on Whistleblowerprotection.eu on 14th November 2018.
The European Union’s whistleblower protection directive is in a state of flux – key political battles are being fought right now. The whistleblower proposals, as they currently stand, have several Achilles heels tucked into the directive’s fine print.
If not taken forward in the right way this legislation could shrink freedom of speech rather than expand it, hence the high stakes of these ongoing political battles.
My hope is that the political compromises that will have to be made do not weaken protection against retaliatory action and the right to disclose. Even if compromises are necessary for those who fear malicious whistleblowing accusations, suppressing false statement does not require suppressing freedom of speech.
The proposed legal requirement to report everything to the employer whose organisation abused its power is extremely problematic. Especially if you then have to wait months before you can contact authorities or law enforcement agencies about the misconduct and then wait up to 9 months after the initial report, before going public. All this would make the directive counter-productive leaving whistleblowers largely defenceless unless they guess right about proposed subjective exemptions; and providing the alleged wrongdoer an enormous head start in terms of destroying information, intimidating witnesses and affecting a cover-up. This provision would fuel the obstruction of justice in a piece of supposedly anti-corruption legislation, while worsening the situation for whistleblowers, who are more likely to stay silent under these circumstances.
The current proposals require nations to have strict penalties for malicious or abusive reporting. This is problematic in that the legal definition of malicious or abusive reporting is so broad that it includes anything that is insulting. In effect, whenever you blow the whistle, you are “insulting” the person who may have engaged in misconduct. It would mean almost every whistleblowing disclosure would be vulnerable to retaliatory litigation.
Companies would then switch from firing whistleblowers to filing multi-million Euro lawsuits or even criminal cases against them. These cases could claim that those reporting wrongdoing have insulted and abused them. In such a scenario whistleblowers are again less likely to come forward. If there is a chilling effect from getting fired there is a freezing effect from facing imprisonment or a multi-million-dollar legal judgment.
WIN is offering these Legal Briefs to all those interested in making whistleblowing work for Europe. They were developed with the expertise of Tom Devine, Legal Director of the Government Accountability Project in Washington DC, a co-founding member of WIN and Anna Myers, Executive Director of WIN.
They are based on 40 years of experience defending whistleblowers through the courts and in the public domain and advising governments around the world on the legislative reform needed to protect those who speak up in the interests of others.
Our Legal Briefs focus on the significant problem of mandatory internal reporting which renders the entire draft directive structurally unsound; the need to remove the mandatory penalties for malicious and abusive reporting, a potentially fatal flaw which will substitute worse retaliation with a greater chilling effect than current job-based harassment; the necessity to get right the legal burdens of proof to give whistleblowers a fighting chance to succeed in seeking justice; the importance of protecting those who initially who raise concerns anonymously, and the need to ensure available remedies are adequate to buffer whistleblowers from the damage of a sustained professional and personal campaign to discredit them. There are also some important elements missing in the draft directive such as a duty to prevent harm and the need to train judges on whistleblower laws.