Whistleblower protection consists in ensuring of confidentiality of all information acquired from such whistleblower and the whistleblower’s data, prohibition of retaliation in response to reporting or public disclosure and prohibition of initiating persistent procedures against the whistleblower. 

Retaliation and employee assessment

The Act contains an open list and a broad definition of “retaliation”. Retaliation is any behaviour that may have an adverse impact on the whistleblower, which is caused by reporting or public disclosure by the whistleblower. The employer can still make any decision concerning the whistleblower based on labour law, it may even terminate the employment contract. However, such decision cannot be dictated by the reporting. 

It will be up to the employer to prove that the decision (e.g. dismissal) was caused by something else, e.g. assessment of the work of the reporting employee.

Whistleblower immunity

Whistleblowers, due to the reporting, may not be accused of breach of personal rights, violation of secrecy or employee duties and no related proceedings can be instituted against them. Such specific immunity may lead to discontinuation of cases unless it is proven that they are not related to the reporting. The prohibition of initiating persistent procedures applies to internal (disciplinary), civil (including labour law) and criminal procedures.

 
Confidentiality – the key to protection

The key to effective whistleblower protection is the confidentiality of their data. 

The fewer people within the organisation have access to reports and know who the whistleblower is, the lower the risk of retaliation as retaliation will not be behaviour taken by a person who is unaware of the reporting. By definition, such behaviour cannot be retaliation because it is not related to the reporting. 
 

Find more in the PRO HR Whistleblowers | June 2024.