Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?
Employment & Labour Law (3rd edition)
There is no specific protection for workers who have made disclosures in the public interest (whistleblowers).
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).
No, they have no special protection.
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.
The German legal system still does not have comprehensive provisions with regard to the protection of whistleblowers.
A dismissal because of whistleblowing classifies as a dismissal for misconduct. Employees are in general required to take their suspicion of wrongdoing to their superiors before going to the authorities. Only if the employer does not take sufficient action regarding the issue or when an internal whistleblowing complaint would seem unreasonable (e.g. the information is of special public interest, involvement of legal representatives of the employer), the employee may blow the whistle externally. In such cases a dismissal due to permitted whistleblowing is invalid.
It has to be noted that the EU Trade Secret Directive provides for a protection of whistleblowers. This Directive, however, still needs to be implemented in Germany.
Yes, an employer who have made disclosure of his/her employer’s violation of the Indonesian penal code is provided special protection in that they cannot be terminated by the employer based on such disclosure. If an employee is terminated due to making disclosure, the termination of employment is deemed as null and void and the employee must be reinstated to his/her former position.
Under Italian law, whenever an employee’s dismissal relies on retaliation grounds as he/she has made disclosures in the public interest (“whistleblowing”), this has to be considered as being null and void and the relevant employee is entitled to be reinstated in his/her previous position (or, at his/her own choice, to be granted with an indemnity amounting to 15 months of salary) as well as to be paid with an indemnity amounting to those salaries which would have been accrued over the period as from the dismissal date until the date of actual reinstatement (a minimum floor of 5 months of salary is provided for).
The Whistleblower Protection Act 2010 (“WPA”) provides protection to whistleblowers, namely the protection of confidential information, immunity from civil and criminal action and protection against detrimental action. This only extends to disclosure of improper conduct to enforcement agencies.
Taking detrimental action against a whistleblower, which includes the termination of employment, interference with employment including refusal to extend/renew fixed term contracts, discrimination, dismissal, demotion, suspension or any form of disciplinary action which is attributed to the whistleblowing, constitutes an offence under the WPA. If found liable, the employer will be subject to a fine of not more than RM100,000 or imprisonment of not more than 15 years or both.
Provisions in collective agreements and employment contracts which prohibit whistleblowing are void and unenforceable. Termination of employment arising from whistleblowing constitutes wrongful dismissal, if proven.
Pursuant to chapter 2 A of the WEA, an employee who has proceeded responsibly when notifying censurable conditions at the employer’s undertaking is protected against retaliation. If the employee submits information that gives reason to believe that retaliation has taken place, it shall be assumed that such retaliation has taken place unless the employer proves otherwise.
It is unlawful for an employer to take retaliatory measures by refusing to pay or reducing the wages and benefits, discharging, or in any manner discriminating against an employee who has filed any complaint or instituted any proceeding or has testified or is about to testify in such proceedings.
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, or violations of law, regulation, or public policy.
Mattos: No. There is no whistle blowing legal framework in Brazil.
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.
Turkey has no specific whistle-blower protection regulation. But, under TLC, the employer will not have a valid ground for dismissal where it terminates an employee for seeking to enforce his/her rights or obligations arising from law or the employment contract through administrative or judicial authorities.
Although there is no direct whistle-blower protection, indirect protection may be applicable as per specific provisions in heavily regulated sectors such as banking and capital markets. Moreover, under Turkish Criminal Code, there is an obligation to notify a crime to the competent authorities. If the employer is involved in a criminal activity, the employees shall be obliged to make such notifications (with potential criminal sanctions in the event of non-compliance).
At present, statutory protection of whistleblowers is generally considered weak in Switzerland.
According to case law, the dismissal of an employee due to whistleblowing is deemed abusive if the reporting of an irregularity by the employee is driven by an overriding interest and if the employee acts in compliance with the principle of proportionality. This means in particular that the employee must first address the potential issue with the employer and can only subsequently inform the competent authorities. If the authorities remain inactive after being informed, the employee can then inform the public.
A bill aiming to improve the protection of whistleblowers has been under discussion for several years. A new amended version of the bill will be discussed by the Federal Parliament, presumably in the course of this year (see question 21).
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.
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.
Employees who protested against an act who they thought in good faith that it was illegal are protected against termination: their termination is deemed void.
Where the termination is void by law, the courts must order that the employee dismissed is reinstated if s/he so wishes. By law, the employee dismissed may however opt for damages for unfair termination instead.
However the illegal activities seem to be limited to: vested interests, corruption and undue influence as characterised in the criminal code.
It does not seem to offer a protection similar to that described in the case law of the European Court of Human Rights.
No legal protection is provided for dismissing (or taking other detrimental action) against an employee for the breach of his/her work related obligations, irrespective of whether he/she is a whistleblower. However, the employer could decide internally to offer this. If so, it is typically recommended to clearly set out in the internal regulation the conditions for a whistleblower to benefit from such special protection.
Whistleblowers –as such- are not considered as a special protection category. However, as mentioned in the preceding answer, workers who have filed a complaint or participated in proceedings against the employer before the competent authorities do have special protection against termination of employment, as described in Question N° 11.
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.
An employee who disclosed properly and in good faith a suspected abuse as meant in the Whistleblowers Authority Act shall not be treated unfairly by the employer during and after the processing of his disclosure by the employer or the competent authority.
Austrian law has no special statutory protection entitled for whistleblowers. However, the employee may challenge the termination for proscribed reasons.
Yes. The Employment Rights Act 1996 protects workers and employees who have made a protected disclosure from suffering a detriment, including the termination of employment, in consequence of making such 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 his disclosure to his employer, although there are circumstances where this is not necessary or the disclosure may be protected even if made externally.
The dismissal of a worker because the worker has made a protected disclosure will be automatically unfair and the minimum period of employment that usually applies to unfair dismissal claims does not apply. The cap on compensation that would otherwise apply is also not relevant.
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 is not made in good faith and the employment tribunal considers it just and equitable to make such a reduction.
By legislation of Armenia there is not definition “disclosures Employer's information in the public interest”. Here non disclosen information can be disclosed in case of having a such decision of court and in that case an Employee can be protected from termination of employment.
Yes, as stated in Questions 11 and 12, an employer shall not terminate or treat an employee unfairly for report a violation of the employment and laws by the employer to the MOEL or a labor office inspector. Applicable penalties are up to two (2) years’ imprisonment or a criminal fine not exceeding KRW 20 million (approx. USD 20,000) (effective May 29, 2018).
Workers who make protected disclosures are protected from penalisation, such as termination as a consequence of making that protected disclosure. An employee who is dismissed as a result of making a protected disclosure may seek interim injunctive relief from the Circuit Court pending their hearing of their unfair dismissal claim. An employee may awarded up to five years' gross remuneration if they succeed in their claim that they were dismissed as a result of making a protected disclosure. To succeed in such a claim the employee must demonstrate that but for making the protected disclosure, they would not have been dismissed.
Croatian law explicitly provides that employment contracts may not be terminated if the worker approaches competent authorities with a complaint for corruption.
It is not legislated in our legal system.
Currently there is no form of protection provided by the 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.