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.