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In brief

The European Whistleblowing Directive (EU WBD) is to be implemented by the European Union’s 27 member states by no later than 17 December 2021 and will impact employers with operations in those jurisdictions. With most of the Member States yet to pass their implementing legislation, employers will face a period of intense activity in the coming months. This chart shows the Directive’s current implementation status across the EU Member States. How ready is your organization for the new whistleblowing regime?


In more detail

The EU WBD is intended to encourage reporting of unlawful conduct through the protection of employees and workers (including independent contractors, shareholders, volunteers, job applicants, and unpaid trainees) who report about certain breaches of European union law, such as the prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, protection of privacy and personal data, security of network and information systems, and more. The EU WBD sets out a framework for internal and external reporting, with strict timeframes for the provision of feedback to whistleblowers and robust anti-retaliation provisions. Click here for our previous alert about the requirements of the EU WBD.

Enhancements to the scope of the WBD

The EU WBD only sets out minimum protections, but member states could choose to enhance these protections. Germany, for instance, proposes to extend the scope to whistleblowing about breaches of domestic law. In addition, some provisions of the EU WBD are open to interpretation. For example, Sweden has suggested that group reporting channels for companies with 250+ employees might not be permitted. All of this means that it is essential to monitor implementing legislation for national variances.

What this means for employers

The EU WBD impacts three main areas: employment, compliance and data protection. Many organizations will in practice want to implement a consistent approach across their entire European operations and to cover a broader range of topics than those prescribed by the EU WBD. They may also wish to factor in broader global considerations to ensure consistency of approach worldwide. In a recent I&D survey which we conducted, 78% of organizations surveyed stated that creating a “speak up” culture is a top I&D priority. Investing in whistleblowing systems and appropriate training across all operations will help cultivate such a culture. Particular areas to consider include the following:

  • Setting appropriate time limits for handling reports and providing feedback
  • Knowing how to deal with allegations raising more than one issue
  • Management of confidentiality, data privacy and handling of anonymous reports
  • Handling data subject access requests
  • Dealing with government authorities and external agencies
  • Ensuring the right personnel are trained on handling reports and case management
  • Communicating the changes to the workforce 

How we can help 

We have deep expertise in advising employers across the globe on key employmentprivacy and compliance issues that arise when implementing whistleblowing policies, rolling out whistleblowing hotline systems, and handling whistleblowing-related complaints. We provide globally coordinated on-the-ground support, and we can help you benchmark your approach based on our combined experience of working with a wide variety of organizations in implementing whistleblowing regimes. Our support includes the following:

  • Revising your internal compliance programs (The EU WBD will enhance the culture of crime prevention and detection within companies.)
  • Implementing of whistleblowing hotlines and global HR databases 
  • Assessing privacy issues arising from the EU WBD
  • Building your investigations protocols 
  • Assisting your internal investigations, ensuring evidence is collected lawfully 
  • Conducting independent and thorough investigations for serious allegations
  • Providing advice on potential disciplinary measures needed 
  • Training your managers and personnel on handling investigations
  • Litigation support

We can provide your company with a multijurisdictional analysis matrix covering five key areas, to help you get started in planning your organization’s whistleblowing regime. For a fixed fee per jurisdiction, we offer jurisdiction-specific data sheets that provide answers to questions about the Directive’s scope and implementation requirements for internal procedures, protection of whistleblowers, and data privacy issues. Our experienced team of lawyers can then assist you with implementing the changes, as well as with training, communications and more.

For further information please contact the authors.

For more information on how we can help future-proof your organization and rethink workforce arrangements, visit Baker McKenzie’s Future of Work site.
 

Author

Margarita Fernandez is a Partner in Baker McKenzie Madrid office.

Author

Monica Kurnatowska is a partner in the Firm's London office. She focuses on employment law and has been recognised by Chambers UK as a leading lawyer in her field. Monica is a regular speaker at internal and external seminars and workshops, and has written for a number of external publications on bonus issues, atypical workers, TUPE and outsourcing.

Author

Ester Maza is a partner in Baker McKenzie's Madrid office, where she practices in employment law. Prior to joining the Firm in 2000, she worked as a legal adviser to Kronsa Internacional S.A. She has served as associate professor of employment law at Carlos III University Law School in Madrid since 2005. She also regularly lectures in several executive and post-graduate masters programs at different prestigious institutions. Ms. Maza has participated in the drafting and updating of various employment-related Ediciones Francis Lefèbvre publications. She also regularly contributes articles to specialized employment and HR-related journals.

Author

Julia Wilson is a partner in Baker McKenzie's Employment & Compensation team in London. She advises senior legal and HR stakeholders on a range of employment and data protection matters. A member of the Firm's Pro Bono Committee, she plays a lead role in the Firm's pro bono relationship with Save the Children International. She also collaborates with Law Works to deliver employment law training to solicitors who provide pro bono advice to individuals. Julia regularly presents at external and internal client seminars on a range of topics, and is often quoted in mainstream media. She authored precedent policies for the UK's Practical Law Company and co-wrote the common concepts chapter of the Tolley's Discrimination Handbook.

Author

Annabel Mackay is a senior associate in the Baker McKenzie Employment Department with extensive experience of advising employers and employees on a range of complex employment issues. She has been ranked in Legal 500 and Chambers & Partners since 2015. Chambers & Partners 2019 report that clients describe Annabel as: "supremely impressive and technically brilliant while also being commercially astute and incredibly bright."

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