The Whistleblower Protection Directive brings additional responsibilities to companies
The Ministry of Justice is working on the development of a draft act aimed at providing protection to notifiers of work-related infringements. The memorandum of intent to develop the act is based on the European Union directive on the protection of notifiers of violations, which was adopted in 2019 and is to be transposed into Estonian law by the end of next year.
According to the Chamber, the Directive’s result does not overweigh the administrative burden on economic operators and the State. The Directive makes it possible to report infringements in accordance with the law already in force, and overregulation and the imposition of obligations may give rise to a reaction quite the opposite to what is intended.
The Directive provides for a three-step reporting system: internal, external and public reports. This means that companies with 50 or more employees will have to create internal channels through which it will be possible to safely, confidentially and, if necessary, anonymously report possible infringements. However, when new internal channels are created, costs are incurred for the company in order to implement new technical solutions as well as to determine the persons who will have to deal with the resolution of the infringement claims received.
The Chamber supports the proposal contained in the memorandum of intent, namely that it is necessary to develop State guidelines and other helping materials and to organise training courses when the Act enters into force. Although it is up to each company to set up information channels and develop procedures, the Ministry of Justice’s contribution to providing information and guidance would be very important. According to the Chamber, it is very important to pay more attention to information activities and to consult economic operators on these matters before the Act enters into force.
Competent external channel
In addition to economic operators, the State must also establish competent external channels where an infringement can be reported. It shall be used in cases where it can be assumed that internal reporting within a company may elicit retaliatory measures against the notifier or where, for example, there is no reporting system in the company because of its small size.
The Directive provides for the designation of a competent, independent and distinct authority for the reception and processing of external reports. The Directive does not specify which authority is to perform this function and whether there must be one or more such authorities. The memorandum of intent states that it would make sense for Estonia to establish external communication channels under different sectoral institutions. The Chamber estimates that it is reasonable to use the already existing supervisory mechanisms to the greatest extent possible and it would be unreasonable to create new mechanisms, because in order to implement them effectively, it would be necessary not only to provide resources but also to ensure their reliability.
Conditions for protecting a whistleblower
According to the memorandum of intent, ensuring the confidentiality of the notifier is the most important protection measure, necessary in particular to ensure that the person reporting the infringement does not become discriminated against in the workplace. Upon the entry into force of the Act, it will be prohibited to use pressure against the notifier, such as occupational bullying, salary reduction, dismissal or threats thereof. The regulation of the Employment Contracts Act already in force today and the related legislation provide adequate and effective protection for the worker from the employer, therefore the Chamber considers it not reasonable to duplicate and/or further specify the rules relating to the employment relationship in relation to the protection of the worker in the context of reporting an infringement.
The memorandum of intent points out that the burden of proof lies on the employer, which means that in the event of dismissal, the employer must prove that the reason for the employee’s leaving was not the reporting of the infringement. Under the memorandum of intent, protection can only be obtained when reporting an infringement, not when a person is unable to do his or her job and, for example, is dismissed for other reasons. At the moment, it is difficult to assess what kind of problems it might bring to employers.
The Chamber is in favour of the principle of equilibrium set out in the memorandum of intent, which is intended to protect the rights of persons about whom a report is made. It lays down the liability for making malicious reports, that is, in situations where the infringement did not actually take place and the notifier was aware of it.
Among the nearby countries of Estonia, legislation for the protection of the notifier exists for example in Latvia and Lithuania. The entry into force of the Act is planned for December 2021.