On 16 December 2019, the European Union passed the Whistleblower Protection Directive (the Directive). EU members states will have to transpose the Directive’s provisions into their national law by 17 December 2021.
As the UK is no longer a member state of the EU, the UK government is not obliged to implement the provisions of the Directive.
Larger multinational companies will have to consider jurisdictional issues, however it is important to note that for solely UK based companies, the Directive is not irrelevant.
Provisions of the Directive not found in UK Law
The following provisions are found in the Directive, but not UK domestic law:
- widening the scope of individuals who are afforded protection to extend to natural persons who are not workers, such as to include self-employed contractors, volunteers and non-executive directors. Under the Directive, whistleblowing will likely no longer be viewed as solely an employment law matter;
- requiring employers with 50 or more employees to set up internal channels and feedback procedures;
- providing legal aid for whistleblowers seeking to bring employment-related claims.
Both UK law and the Directive offer protection against retaliation against whistleblowers, but unlike the UK, there is no requirement for a whistleblower to believe that their disclosure is in the public interest.
Why does this matter to my business?
For companies with a presence in both the UK and the EU, the Directive will be of direct relevance, regardless of the fact the UK is no longer a member of the EU.
However, even for those without an EU footprint, the Directive may remain significant. The UK is a member of the Assembly of the Council of Europe, and there has been no indication that it intends to relinquish this membership. The Assembly issued a statement in 2019 calling for the adoption of a binding legal instrument that would draw on, and add to, the Directive.
Further, under the Trade and Cooperation Agreement concluded between the EU and the UK, the UK is required to keep up with the EU level of employment protection. Consequently, the UK may decide to amend UK law in order to keep pace with the changes and the Directive remains on the UK government’s list of EU instruments under consideration. This will mean businesses will be ahead of the curve if they’ve already updated policies and procedures to reflect the changes.
The UK has historically represented a high benchmark for whistleblower protection, with many organisations looking to their UK counterparts for examples of an effective policy. However, this can no longer be considered the case. The differences introduced by the Directive establish that, in some respects at least, the UK can no longer be used as the ‘gold standard’ for whistleblowing policy.
The Directive points to good practice in whistleblowing, in particular by implementing clear internal channels and procedures which ensure a whistleblower’s identity is kept confidential. The terms of the Directive can serve as a prompt for businesses to review whistleblowing practice and procedures and make improvements where appropriate.