Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?
Employment & Labour Law
There are no special protections against termination of employment in respect of whistleblowers. However, such whistleblowers may bring civil claims in the courts against their employer for wrongful dismissal if it can be shown that their termination constitutes a breach of the implied term of mutual trust and confidence.
Congress has established whistleblower protections for employees in the private sector through the adoption of whistleblower provisions in at least 18 federal statutes. In particular, the Sarbanes-Oxley Act of 2002 (SOX) prohibits publicly-traded companies, including any subsidiaries or affiliates whose financial information is included in the consolidated financial statements of such companies, and nationally recognized statistical rating organizations from discharging, demoting, suspending, threatening harassing, or in any other manner discriminating against an employee because such employee provided information, caused information to be provided, or otherwise assisted in an investigation, or filed, testified, participated in, or otherwise assisted in a proceeding regarding any conduct that the employee reasonably believes is a violation of SOX, any SEC rule or regulation, or any federal statute relating to fraud against shareholders. Some states have broader whistleblowing laws protecting complaints of possible fraudulent or criminal conduct.
Yes, although a case by case analysis shall be made (in this regard, and depending on the circumstances, such employees may argue that the dismissal decision was taken in retaliation of a previous complaints/disclosures made against the Company).
The Labour Law does not provide for any express protection or provision in relation to whistle-blowers.
This being said, the precedents of the Court of Cassation provide for a specific protection of whistle blowers, whereby termination of the employment relationship of an employee who made disclosures in the public interest or submitted any kind of complaint against the employer (e.g. criminal or administrative complaint) due to misconducts made within the business is deemed as invalid if such disclosure or complaint is a true statement.
No. The law does not provide a special protection to such employees not to be dismissed.
Whistleblowers are basically protected under art. 336 of the Swiss Code of Obligations which prohibits any termination in bad faith respectively abusive termination. However, only whistleblowing worthy of protection will benefit from respective protection. This particularly requires that the employee acts in good faith and in compliance with the principle of proportionality (complaining internally before informing the competent authorities and informing the competent authorities before going public with a complaint).
Longstanding discussions about an explicit legal anchoring of an increased protection for whistleblowers have not yet produced any concrete results.
Yes. Dismissal of an employee who made disclosures in the public interest is void under certain circumstances as set forth in Article 3 of the Whistleblower Protection Act. For example, if an employee informs the company of a Reportable Fact as defined in the said Act that the employee considers to have occurred or is about to occur, and is dismissed as a result, such dismissal would be void. The same applies to the dismissal of an employee who reported to the pertinent administrative agency of a Reportable Fact when there are reasonable grounds to believe that the Reportable Fact has occurred or is about to occur.
In Thailand, whistleblowers are not entitled to any special protection from termination of employment. The closest relevant law is the LRA which prescribes that the employee concerning with a negotiation under the LRA or a lawsuit under the LPA is protected from termination of employment by an employer.
While the labour laws do not specifically provide for any special protection to whistle blowers from termination of employment, however, dismissing a workmen by way of victimisation or not in good faith has been prohibited under the ID Act and amounts to unfair labour practice. In addition to this, the Companies Act, 2013 makes it mandatory for certain companies as prescribed thereunder to establish a vigil mechanism for directors and employees to report genuine concerns in the prescribed manner. Such mechanism is required to provide for adequate safeguards against victimisation of employees and directors who avail of the mechanism. These mechanisms typically provide for anonymity to the whistle blower to ensure protection against victimisation.
In our country whistleblowers are not entitled to any special protection from termination of employment.
If an employer terminates an employee as a reprisal for the employee having made a complaint against him, the employee can claim wrongful termination and would be entitled to a maximum of three months’ pay as damages. The Labour Law does not provide for dealing with anonymous complaints regarding regulatory violations. However, the Penal Code and Anti-Money Laundering Law do contain provisions protecting whistle-blowers.
From the labour law perspective, there is no clear law or regulation providing special protection to whistle-blowers and such special protection from termination of employment is only provided to five groups of people outlined above (see question 13).
Swedish law sets forth protection for whistle blowers through the Whistleblowing Act. The legislation prohibits employers to take disciplinary measures against employees who disclose severe misconducts within the business of the employer. An employer who acts in breach of the legislation may be obligated to pay damages in accordance with the maximum amounts set out in the EPA, please see question 8 above. Further, a termination or summarily dismissal based on whistle blowing from the employee may be declared invalid due to lack of legal grounds for terminating the employment.
According to the Protection of Public Interest Reporters Act, in the event an act violating the public interest occurs (or there is chance of such act occurring), a person may make a report or claim of such act (“the “Public Interest Report”) to the company representative, its employer, relevant authorities or investigation agencies.
An “act violating the public interest” includes acts that violate the public’s health, environment, consumer benefit and fair competition that will result in the criminal penalty or administrative sanction such as suspension or cancellation of licences/permits.
An employer cannot enforce any disciplinary or unfavourable measures against an employee for the Public Interest Report (i.e., whistle-blowing).
In the event the whistle-blower’s Public Interest Report includes confidential information of the employer (e.g., trade secrets), the whistle-blower will not be deemed to have violated the confidentiality obligations the whistle-blower would have been subject to under the employer’s internal rules or regulations, or applicable law.
Any collective bargaining agreement, employment agreement, or internal rule or regulation of the employer which limits or prohibits employees from making a Public Interest Report will be deemed ineffective and have no legal effect.
In the event a whistle-blower receives unfavourable treatment due to the Public Interest Report (including situations where employee receives unfavourable treatment during preparation or collection of evidence of the whistle-blowing event), the whistle-blower may raise such issue to the National Human Right’s Commission and demand protective and appropriate measures.
Pursuant to a law of 9th December 2016, whistleblowers enjoy a protection consisting of the prohibition of discriminatory measures (resulting in annulment of said measures if any) and immunity from criminal prosecution whenever whistleblowing is performed in compliance with the law. The legal whistleblowing procedure entails, inter alia, a principle of bona fide and disinterested reporting, and an obligation to first disclose illegal acts to the employee’s supervisor. The scope of facts subject to whistleblowing is extremely broad (including but not limited to, any criminal offence of medium or high range). If the supervisor abstains to take reporting into consideration, the employee is free to report the fact to judicial or administrative authorities, and if these remain inactive for three months, he may report the facts to the press.
Austrian law has no special statutory protection entitled for whistleblowers. However, the employee may challenge the termination for proscribed reasons.
Employees who report organisational wrongdoing or illegal activities have various protections related to their jobs.
At common law, there is whistle-blowing protection available to public sector employees who publicly express opposition to the government or its policies in instances where (i) the government is engaged in illegal acts; (ii) government policies jeopardise the life, health, or safety of the public; or (iii) speaking out has no impact on the employee’s ability to perform his or her duties. Where these whistle-blowing exceptions apply, an employee’s conduct in ‘speaking out’ will not constitute a breach of the employee’s duty of loyalty which is owed to his or her employer, and the employer may thereby be prevented from asserting that it had just cause for the dismissal of the whistle-blowing employee.
Canada’s criminal legislation, the Criminal Code, deems it an offence for an employer to either threaten or retaliate against an employee who provides information to a person whose duties include the enforcement of federal or provincial law, regarding an actual or potential breach of the law by the employer.
The Public Servants Disclosure Protection Act (the ‘PSDPA’) protects federal public sector employees who divulge wrongdoing by their employer against reprisal. Wrongdoing under the PSDPA may involve illegal conduct, misuse of public funds or assets, or gross mismanagement. In order for whistle-blowing to be protected under the PSDPA, the employee must adhere to the statutory requirements for disclosure which includes, among others, the requirement that the public servant provide no more information than is reasonably necessary to make the disclosure.
Provincial employment standards legislation, human rights legislation, and health and safety legislation in Canada generally contain protections against reprisals in respect of employees who inquire about and seek to enforce their rights under the law. Violation of reprisal provisions may lead to various consequences including damages, penalties, fines or imprisonment.
In Ontario, the Securities Act prohibits retaliation by Ontario employers against employees for reporting securities violations (as well as against employees who express their intention to report such violations).
No, there is no specific protection applicable in the private sector.
However, whistleblowing legislation exists in the public sector, at Flemish level and at federal level, and provides for protection against dismissal.
In Italy the specific legislation on whistleblowing currently in force only covers civil servants (Law no. 190/2012) and, following a rather recent Legislative Decree (no. 72/2015), employees in banks and financial institutions. Therefore, in general the employees in the private sector have to rely only on the general Italian law contained in the Constitution, the Civil Code, the Criminal Code, the Labour Code (Workers’ Statute) and the Data Protection law.
Public sector employees
Civil servants have explicit protection against dismissal, disciplinary action, or other forms of retaliation or discrimination because he/she had made a protected disclosure under the Civil Servants Law (Law No 190/2012). Specifically, the employee “cannot be sanctioned, dismissed or be subject to any discriminatory measure, directly or indirectly, having any impact on her/his working conditions for reasons that are connected (directly or indirectly) to the disclosure”.
Indeed, the civil servant will have the right to be reinstated and according to the Civil Servants Law, “the adoption of any discriminatory act has to be communicated to the Public Function Department”.
If disciplinary action is taken against the employee (e.g. fine, suspension) as a retaliatory measure due to the whistleblowing, the court will annul the sanction. The employee might also seek to obtain damages (e.g. reputational damages) but these will need to be proved.
Private sector employees
A dismissal of an employee in the private sector for reasons that are connected (directly or indirectly) with the disclosure of wrongdoing or malpractice may be deemed unfair (in particular, it may be considered a “retaliatory dismissal”).
There is a degree of tension between (i) employees’ right to give information and express their opinions on the employer’s business (a variation of the principle of freedom of expression, provided to all citizens under section 21 of the Italian Constitution) and (ii) their duties to their employer to preserve their employer’s confidential information and not to infringe the employer’s “personality rights” (e.g. not to undermine its reputation) and duty of loyalty to their employer. Courts seek to balance these conflicting interests in the context of whistleblowing. As a result of this balancing test, courts tend to regard employees’ disclosure of wrongdoing or malpractice as lawful provided that the following three principles are satisfied:
- the disclosure must be based on facts which are true or which the informant believes in good faith to be true. The inclusion of facts which do not meet this test could jeopardise the protection available to the employee;
- the way in which the employee makes the disclosure must be civil, restrained and expressed in a balanced way;
- the employee’s reason for making the disclosure must be to pursue a suitable interest – e.g. the collective interest of fellow workers, his/her own interest or the wider public interest. However, if the whistleblower’s disclosure is not merely motivated at damaging the employer’s reputation, then his/her disclosure might go beyond what is permitted under the right to information and the right of criticise another’s actions.
In a nutshell, provided that the whistleblower lawfully made the disclosure, he/she may have the right to be reinstated and the employer will have to pay the employee an indemnity equal to the amount of salary he/she would have been entitled to from the date of dismissal to the date of effective reinstatement, with a minimum indemnity of 5 months’ salary. Alternatively, the employee can waive his/her right to reinstatement and will be entitled to an indemnity equal to 15 months’ salary (with a minimum indemnity of 5 months’ salary) and compensation for lost salary covering the period from termination to the date of the court judgment.
An employee cannot be subject to any retaliation measures in case the employee denounces or refuses to execute an act which he/she considers in good faith as an unlawful taking of interests, bribery or influence peddling.
In addition, an employee may not be subject to any reprisal measures or sanction in case he/she denounces such act to his/her immediate superior or to the competent authorities or regulators.
Any contractual provisions or act contrary to the above-mentioned provisions is deemed null and void.
A dismissal because of whistleblowing classifies as a dismissal for conduct-related reasons. A dismissal due to permitted whistleblowing is always invalid. In many cases internal compliance guidelines regarding whistleblowing have to be followed first before alarming a supervisory authority or the police or a public prosecutor's office is permissible.
No, whistleblowers are not entitled to any special protection from termination. However, whistleblowing schemes should ensure that the identity of the employee making the report is processed confidentially. Whistleblowers are entitled to sufficient protection and the employer should ensure that they will not be subject to any retaliatory actions including termination of employment as a consequence of making a justified report. An employee intending to report to a whistleblowing scheme should be aware that he/she will not be dismissed due to the disclosure and that he/she will not suffer any damage for reporting a wrongful act through a whistleblowing scheme. It is also necessary to inform employees of the potential need to disclose identity to the relevant parties involved in eventual further investigation or subsequent judicial proceedings instigated as a result of the enquiry.
However, an employee intentionally reporting something false on another employee may face criminal charges of defamation or dissemination of information breaching personal privacy. The employee may also be guilty of harassment and improper treatment at the workplace. Reporting in bad faith may give the employer a weighty and acceptable reason to termination of the whistleblower's employment relationship.