On 17 December the EU Whistleblowing Directive (the Directive) came into force. Under the Directive, businesses and government bodies operating in any EU country must set up an internal whistleblowing system to give whistleblowers confidentiality and provide access to an independent investigation. They'll also need to maintain whistleblower confidentiality throughout investigations, keep them updated on progress and ensure there are no reprisals against those who come forward.
Two implementation dates apply depending on workforce size:
- Businesses and government bodies with 250 or more workers must be compliant by 17 December 2021.
- Businesses and government bodies with between 50 and 249 workers have a further two years and must be compliant by 17 December 2023.
The Directive requires the above timings, but certain member states have already indicated that they intend to delay implementation in their jurisdiction. It's currently unclear when we might see the final legislation.
UK employers with EU based operations will need to decide whether to change their whistleblowing arrangements to comply with a potential hotchpotch of different rules. The strict legal requirements in the UK and the EU are likely to diverge once the Whistleblowing Directive is transposed into members states' national laws.
How should UK employers respond?
Employers with operations in the UK and member states will face a number of challenges. One of the key issues is whether to apply a single framework and whistleblowing policy to their UK and EU workforces. This will of course depend on the final version of the rules and the extent to which member states gold plate the Whistleblowing Directive. If organisations do apply a single framework they will need to comply with the aspects of each member states' whistleblowing rules that give the highest protection to ensure full compliance.
There will also be a challenge with engaging with social partners, for example works councils or trade unions, to co-operate on the design and implementation of new whistleblowing arrangements. This may pose challenges when companies recognise different employee representative bodies in different countries and so face juggling different priorities and proposals from different bodies. It may also be a challenge for UK employers to negotiate whistleblowing policies and arrangements given that we are not familiar with the negotiation of employment policies and procedures.
There are great opportunities for UK employers to engage with staff across Europe to create a whistleblowing framework that will allow businesses to benefit from finding out early about issues and encouraging whistleblowers to speak up in the knowledge that they will not be disadvantaged if they do so.
Taylor Wessing's international employment team is ideally placed to help you manage the challenges of implementing a whistleblowing policy and procedure that complies with the Whistleblowing Directive and which will allow you to gain the confidence of your staff.
How we can help
Our international whistleblowing service can help you ensure compliance and protect your business. Our presence in the UK and across the EU means we can smooth out some of the issues that come with addressing the Directive in multiple countries. We can also manage your internal reporting channel for you, reinforcing your independence. For more information, click here.
