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In brief

EU Member States must implement the European Whistleblowing Directive (EU WBD) by 17 December 2021. However, only Denmark, Sweden and Portugal have passed their implementing legislation. You can view our implementation tracker here.

It’s unlikely that the EU WBD will have a horizontal direct effect. In other words, it’s unlikely that an individual can bring a claim against a private employer for failing to apply the directive (as opposed to national implementing legislation). This means that employers may not face immediate risks in those Member States that have not yet implemented. However, even so, it is possible that courts and authorities will take the EU WBD in consideration when interpreting existing local law. We recommend that organizations have a plan for dealing with the baseline requirements of the EU WBD, and they should start reviewing or implementing reporting channels and investigation protocols according to the EU WBD.


What organizations need to do now

The EU WBD (i) provides robust anti-retaliation protection to whistleblowers who report certain breaches of EU law and (ii) sets out a framework for internal and external reporting, with strict procedural requirements and time frames. For example, the obligation to implement an internal reporting channel will initially affect employers with 250+ workers, while smaller entities with 50-249 workers have until 17 December 2023. One frequent issue is whether companies with 250+ workers will be able to rely on group channels after implementation.

Organizations should map the EU WBD requirements against existing speak-up channels and investigation protocols and procedures, and identify any gaps. They should also carefully monitor implementation by EU Member States because there will be areas of gold-plating/divergence in local laws, as we’ve seen in the Danish and Swedish implementation.

How we can help

There are several ways we can support clients, as follows:

  • We can help with the initial mapping of EU WBD requirements against existing organizational policies and procedures.
  • We can assist with revising or implementing your internal policies, reporting channels and investigation protocols and with training personnel on handling investigations to comply with the EU WBD requirements.
  • We can advise on emerging challenges and best practices in EU WBD compliance, including in relation to group reporting;
  • We have a fixed fee multijurisdictional matrix that outlines how the EU WBD has been implemented in each EU Member State, including looking closely at the requirements for internal procedures, protecting whistleblowers and data privacy issues. 

Click here to connect with our EU WBD team and learn more about how we can assist you.

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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