The implementation of the EU Whistleblowing Directive later this year marks a significant change, which will have practical consequences to the workplace outside Europe.

The EU Whistleblowing Directive (WBD) protects a broad range of people who acquire information about breaches of European Union law in a work-related context and who decide to make a report. It supplements existing EU sector specific whistleblowing (“WB”) rules, such as in the financial services, extending protection beyond workers and including former and current workers, the self-employed, shareholders, board members including non-executives, volunteers, trainees, those working for contractors, subcontractors and suppliers and job applicants.

Employers must operate internal whistleblowing channels meeting minimum criteria on diligent investigation and response. The requirement to establish internal reporting channels, under the WBD, extends to public sector legal entities and private sector employers of more than 50 workers (the 50+ threshold does not apply to small employers covered by sector specific EU rules).

Member States may delay this requirement until December 2023 for some private employers with 50-249 workers.

A recent survey carried out by Eversheds Sutherland shows that many Member States (Estonia, Germany, Hungary, Italy, Poland, Portugal and Spain, all of which have limited existing WB protections in place) have yet to publish draft legislation to implement the WBD. Most are expected to meet the 17 December 2021 deadline for implementation.

A minority of Member States have progressed with implementation (the Czech Republic, Finland, Netherlands, Romania and Sweden), with some differences in approach, but all of the law proposals are expected to exceed the standards set by the WBD. For example:

• in Czech Republic, where actually there are not general whistleblowing laws, the law proposal for the implementation of the WBD extends WB obligations to smaller private sector employers (with more than 25 employees instead of 50 under the WBD). Moreover, whistleblowing can be made anonymously and it is the whistleblower’s decision whether to use internal or external reporting channels;
• also in Sweden’s law proposal WB can be made anonymously and employers failing to comply risk fines and paying compensation;
• in Finland, where WB laws already exist but with limited scope only (such as covering trade secrets), the law proposal includes (in the list of the conduct which may be the subject of WB) not only breaches of EU laws and, but also of national laws;
• in Netherlands, where WB in the public interest is currently protected but the WBD requires the existing law to be strengthened – the law proposal provides for public interest wrongdoing to be included (such as breach of a national law), not just breaches of EU law, although both will not always treated the same, and very serious penalties for breaching confidentiality;
• Romania’s law proposal states that internal reporting channels must be made available not only to employees, but also to employees of independent contractors and suppliers.

Given the 17 December 2021 implementation of the WBD, employers should be preparing their actions to comply with the legislation.

As mentioned, on 30 July 2021, Eversheds Sutherland published an interesting briefing “The Global HR strategies, chapter three: Speaking Up – The 2021 deadline for the EU Whistleblowing Directive”, reporting on how it is being implemented locally across EU Member States and providing practical steps employers can take.

The topic is relevant, especially considering that the pandemic has highlighted the importance of employer whistleblowing procedures, reflecting a rise in workers speaking up against corruption, unsafe practices and other misconduct.