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Europe: European Whistleblowing Directive – The deadline for implementation expired on 17 December 2021

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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.

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Author

Margarita Fernández is a partner in Baker McKenzie's Madrid office. Marta has been with the Firm for 20 years, having joined the labor department of the Madrid office in 2002. As a member of the Employment Practice Group, Margarita specializes in employment-related matters. In September 2016, Margarita was seconded to a multinational company, where she provided assistance with the management of global employment matters and the implementation of global best practices to the group management team. Before joining Baker McKenzie, Margarita rendered services at the legal department of Grupo Generali. Margarita is an associate professor at University Carlos III, where she gives classes on international employment counselling. Margarita is a member of the Labor Lawyers Forum (FORELAB). Her keen interest in diversity and inclusion is reflected in the fact that she is also a member of the Women in a Legal World network, to promote female leadership in the legal world; a co-director of the SayAbility Working Group of FIDE, which focuses on the inclusion of people with disabilities in law firms; and part of the CEO for Diversity (CEO por la diversidad) alliance.

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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.

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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.

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Julia Wilson is a partner in Baker McKenzie's Employment & Compensation team in London and co-chair of the Firm's Workforce Redesign client solution. Julia also leads the employment data privacy practice in London. Julia advises multinational organisations on a wide range of employment and data protection matters. She is highly regarded by clients, who describe her as a “standout” performer who "knows how we think." 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 and moderates panels on podcasts, webinars and in-person events, is often quoted in mainstream media, and authors articles and precedents for a range of industry and other publications.

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Annabel Mackay has 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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