Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?
Employment & Labour Law (2nd Edition)
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.
Yes. The Employment Rights Act 1996 protects workers and employees who have made a protected disclosure from suffering a detriment, including where their employment is terminated because the worker made such a disclosure. The worker must believe that they are making the disclosure in the public interest and it must fall within one of six prescribed categories. The disclosure must also be made in one of six prescribed ways. In practice, in order to qualify for protection, the worker must usually make the disclosure to their employer, although there are circumstances where this is not necessary.
If an employer dismisses a worker because the worker has made a protected disclosure, this will constitute an automatically unfair dismissal and the two year qualifying period that must usually be met to make an unfair dismissal claim does not apply. The cap on compensation also does not apply.
There is no need for the disclosure to be made in good faith, but an award of compensation may be reduced by up to 25% if it was not made in good faith and the Employment Tribunal considers it just and equitable to make such a reduction.
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 certain instances, for example 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).
It is unlawful for employers to discharge, or discriminate against any employee who has filed a complaint or has instituted any proceedings, or testified in relation to their wages. Further, in organized establishments, it is considered an unfair labor practice when an employer dismisses, discharges or otherwise prejudices or discriminates against an employee for giving such testimony.
Yes, please see Section 11 above.
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, termination or summary dismissal based on whistleblowing from the employee may be declared invalid due to lack of legal grounds for terminating the employment.
Employees whose employment has been terminated on grounds of having made a protected disclosure may be awarded up to five years’ remuneration or reinstatement or reengagement. Employees who claim that their employment was terminated for this reason may bring an unfair dismissal case without having completed one year’s service.
Employees who can demonstrate that there are substantial grounds to contend that their employment was terminated as a result of having made a protected disclosure can apply to the Circuit Court for an injunction to restrain the termination pending the outcome of their underlying unfair dismissal claim.
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.
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
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.
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 the five groups of people outlined above (see question 13).
Whistle-blowers are not protected as such under Belgian law. They can refer to the regular rules on unfair dismissal.
Austrian law has no special statutory protection entitled for whistleblowers. However, the employee may challenge the termination for proscribed reasons.
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.
Whistle-blowers are basically protected under art. 336 of the Swiss Code of Obligations which prohibits any termination in bad faith. However, only whistle-blowing 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 whistle-blowers have not yet produced any concrete results.
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.
The Protected Disclosures Act 2000 provides statutory protection to government employees who complain about serious wrongdoing. Serious wrongdoing includes unlawful, corrupt or irregular use of public money or resources, any criminal offence or gross negligence by public officials.
If the disclosure of information is made in accordance with the Protected Disclosures Act 2000, no civil, criminal, or disciplinary proceedings can be taken against a person for making the protected disclosure.
An employee who suffers retaliatory action by their employer for making a protected disclosure can take personal grievance proceedings under the Employment Relations Act 2000. It is also unlawful under the Human Rights Act 1993 to treat whistle-blowers or potential whistle-blowers less favorably than others in the same or similar circumstances.
For a long time in Italy the specific legislation on whistleblowing only covered civil servants (Law no. 190/2012) and, following the Legislative Decree no. 72/2015, employees in banks and financial institutions.
On 14 December 2017 entered into force the Whistleblower Protection Law (Law no. 179/2017), making Italy closer to the anti-corruption legislation in force across Europe; it strengthens pre-existing whistleblower protections for public-sector and bank sector’s employees, extending those protections to the private sector.
The new law sets out certain mandatory requirements on whistleblowing for those companies operating in the private sector which have adopted (or chosen to adopt) an Organization and Management Model pursuant to Legislative Decree 8 June 2001, no. 231.
For sake of clarity, the adoption of an Organization and Management Model is not mandatory for companies but represents a strategic choice: in fact, having an effective Organization and Management Model in place can exclude corporate liability for specific crimes committed by relevant people (i.e. members of the top management and high level managers, including any persons subjected to the management or supervision of the top management) in the interest of the companies themselves.
However, regardless the opportunity to implement such specific Organization and Management Model, it is interesting to point out that Italian companies may be interested in adopting an internal procedure in order to facilitate the whistleblowing process and to guarantee a strong protection to employees who report unlawful behaviours of which they became aware of during their work activities.
In fact, the Whistleblower Protection Law rules the manners of reporting any misconduct to the employer with the aim at protecting the identity of the whistleblower as well as applying sanctions for any retaliation or discrimination occurred to the whistleblower.
In particular, Section 2 of the said Law states that the employer has to: (i) identify specific channels (at least, one of those should be an alternative channel by electronic methods) to allow employees to report potential misconducts within the work place as well as (ii) to ensure the confidentiality of the whistleblower identity.
In relation to this latter point, it is important to highlight that the whistleblowing procedure has to provide for specific sanctions in the event of breach of such confidentiality protection.
Furthermore, another important aspect introduced by the new law is the non-retaliation of those employees who raise in good-faith the suspicion of illegal behaviours.
In this regard, any discriminatory measure adopted against the whistleblower (i.e. dismissal, demotion, but also any other change that can be deemed detrimental or discriminatory towards the whistleblower) is considered null and void.
The peculiarity of such safeguard is that the employee can report (also through a union representative) any retaliation or discrimination suffered to the National Labour and, most important, the employer has to prove that discriminatory measures are motivated by reasons beyond the employee’s reporting.
The Whistleblower Protection Law also rules that, in the event of false allegations, specific sanctions should be provided for those individuals who report, with intent or gross negligence, untrue allegations.
This provision seems consistent with the fact that the employee must report only specific and concrete circumstances related to any infringement, grounded on precise and consistent facts.
Another interesting provision regards the exception provided by Section 3 of the Whistleblower Protection Law in relation to confidentiality restriction: the prevention or the avoidance of any infringements allows the whistleblower to reveal or disclose information covered by confidentiality obligation pursuant to the criminal and civil code.
In addition, whistleblowing schemes must be implemented in compliance with EU data protection rules since in the vast majority of cases rely on the processing of personal data (i.e. on the collection, registration, storage, disclosure and destruction of data related to an identified or identifiable person); therefore, the processing of personal data for whistleblowing purposes must be always carried out with a prior information to employees, providing the elements set forth in Italian Data Protection Code (DPC, Legislative Decree No 196 of 30 June 2003) and, from 25 May 2018, in General Data Protection Regulation.
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.
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 or any of its employees).
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.
Under the ID Act, discharge or discrimination against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute constitutes an ‘unfair labour practice’ and the employer will be subject to punishment with imprisonment and / or fine for the violation of the same.
Further, workers, whether public servants or not, who have made any public interest disclosure are generally protected against any kind of victimisation under the Whistle Blowers Protection Act 2011. An employer may be subject to penalties in case of victimisation.