Topic: Whistleblowing

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What is the real reason for dismissal?

The Supreme Court in the UK has held in the case of Royal Mail Group Ltd v Jhuti that, where the real reason for dismissal is a protected disclosure which has been hidden from the person determining the dismissal, by a person in a position of responsibility, the dismissal is automatically unfair, even where the decision maker relied upon the reason for the dismissal in good faith.

In this case the employee made a protected disclosure to her line manager. As a result she was put under pressure to withdraw her allegations by that line manager, which she duly did.  … Continue Reading

Extension of whistleblowing protection

Workers in the UK are protected from suffering a detriment where they have made a protected disclosure under the Employment Rights Act 1996 (ERA 1996). To be protected under section 47B ERA 1996 the individual must be a worker as defined by s203(3) of that Act.  A recent decision of the Supreme Court considered whether the right should be extended to other office holders, in this case a District Judge.

The District Judge is an office holder and as such does not fall within the definition of worker. She made various disclosures regarding the justice system and claimed that she … Continue Reading

New EU rules for protection of whistleblowers

On 7 October 2019, the EU Council formally adopted the new Whistleblowing Directive that will guarantee whistleblowers EU-wide standards of protection. The Directive obliges both public and private organisations and authorities to set up secure reporting channels, so that whistleblowers can report violations of EU law as safely as possible. Member States have two years to transpose the rules into national law.

The main elements of the new legislation are:

  • Companies with more than 50 employees and national and regional administrations and local municipalities with more than 10,000 inhabitants will be obliged to set up secure reporting channels. They will
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Do managers typically think of personal liability when making decisions to dismiss? They perhaps should

Directors and senior managers and their employers should consider the recent Court of Appeal decision in the Osipov whistleblowing case very carefully. Briefly, by way of scene-setting, Osipov had made a series of protected disclosures and he was ultimately dismissed as CEO of the employer company pursuant to a decision of two non-executive directors (NEDS) of the company. He brought a  whistleblowing claim (for approx. £1.7m) against the company.  He also added the two NEDS as respondents on the basis that they had subjected him to a detriment for (amongst other allegations) their part in the decision to dismiss him.… Continue Reading

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.… Continue Reading

Norton Rose Fulbright’s online guide to global employment law is now available

More and more organisations are growing their global footprint and need to move their people around the world. In this global environment, it is essential to know, understand and comply with employment and labour laws in place across all of the jurisdictions in which organisations engage people. This will help to protect business from unnecessary risk, whether legal, financial or reputational.

We have launched a new interactive online version of our Global employment law guide first published in 2015.

Featuring 28 jurisdictions, our interactive guide helps clients navigate the often disparate and diverse national employment and labour laws, in particular … Continue Reading

Employment Law and Financial Institutions

In the financial sector, in addition to individual employment contracts, working conditions can be subject to various industry related statutes and regulations, collective bargaining agreements and works agreements.

Laws and regulations

As a reaction to the global financial crisis, the participants of the 2008 G20 summit in Washington, including Germany, agreed on the establishment and implementation of global standards of regulation, cross-border supervision and management to avoid conflicts of interest and to create an early warning system to avoid a repetition of the financial crisis.

In response to this resolution, the Financial Stability Board (FSB) published principles for sound compensation … Continue Reading

Criminal Finances Act 2017 – Employers liability

The Criminal Finances Act 2017 came into force in the UK on 30 September 2017. It introduces new corporate criminal offences of failing to prevent an employee, agent or any other person who is performing services for the organisation from criminally facilitating the evasion of tax, whether the tax is owed in the UK or in a foreign country.

The new offence does not alter what is criminal, but changes who can be held to account for the acts. The new offences are a reaction to the Government’s frustration at the difficulty in attributing criminal liability to companies and partnerships … Continue Reading

Whistleblowing – what amounts to the public interest?

A recent Court of Appeal decision has confirmed that a disclosure which is in the private interest of the worker can still be considered to be in the ‘public interest’ and therefore fall within the whistleblower protection included in the Public Interest Disclosure Act 1998. However, it did confirm that any decision will depend on its facts.

Under the Employment Rights Act 1996, the definition of a qualifying disclosure for whistleblowing purposes includes that “in the reasonable belief of the worker making the disclosure, [the disclosure] is made in the public interest…” What is meant by this phrase was examined … Continue Reading

New protection of French whistleblowers under the Sapin II Law

Much attention was focused recently on President Obama’s decision, in the final days of his presidency, on commuting the sentence of Chelsea Manning, who provided certain classified information to WikiLeaks. In France, new legislation has recently been passed and implemented harmonizing the protection of whistleblowing employees (https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=4BBFD240827AF0FD9A6340FF254E6F1B.tpdila21v_3?cidTexte=JORFTEXT000033558528&categorieLien=id).

Who is concerned?

Under the new regulation, whistleblowers are defined as “any individual who reveals or reports, acting selflessly and in good faith, a crime or an offence, a serious and clear violation of an international commitment which has been ratified or approved by France or of an unilateral act of … Continue Reading

What are the latest developments on whistleblowing in the workplace?

The legislation relating to whistleblowing in the workplace can involve claims for labor harassment, crimes in the work place, corruption, non – fulfilment of regulations relating to outsourcing, hiring of foreign employees, the Health Committee responsible for supervising health and safety matters, amongst others.

 

Article 23 of the National Constitution, Article 24 of the Administrative Code and Law 1755, 2015 regulate the right of petition in respect of a general or particular interest and the right to obtain prompt and complete resolution. In accordance with this legislation, everybody has the right to present inquiries, complaints and to whistle blow … Continue Reading

New whistleblowing rules for regulated entities in the UK

In October 2015 the UK regulators, the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA), released new whistleblowing rules for certain regulated entities in the UK (the New Rules). The New Rules impose obligations on these entities in addition to the requirements of existing whistleblowing legislation found in the Public Interest Disclosure Act 1998 (PIDA) and the Employment Rights Act 1996 (ERA).  Whilst they have until 7 September 2016 to comply with most of the requirements of the New Rules, 7 March 2016 was the deadline for the appointment of a whistleblowers’ champion.… Continue Reading

“What are the latest developments on whistleblowing in the workplace in Germany?”

Apart from the well-known Wiki-leaks, recent prominent cases of whistleblowing such as Lux-leaks, the Panama Papers or the case of the German geriatric nurse Brigitte Heinisch, who was dismissed after revealing the ill-treatment of elderly people in a Berlin retirement home, continue to highlight the continued relevance of the topic “whistleblowing”. While this has resulted in an increased public awareness and consequent expectation of global corporate accountability, the subject remains a complex matter of opposing interests: on the one hand, the public interest in ensuring that companies, authorities and organisations comply with the law, and on the other hand, the … Continue Reading

Launch of the new Global Workplace Report

The Global Workplace Report is a monthly summary of our most popular blog articles from our Global Workplace Insider blog. This report provides concise commentary and insight essential for employers that want to stay current on the legal and business developments and trends impacting employment and labor matters globally.

Global employment and labor trends

United States

For decades, state laws have governed employers’ trade secret claims against employees in the U.S., even though federal law has largely controlled employers’ patent and copyright claims. With the Defend Trade Secrets Act of 2016 (“DTSA”), signed into law May 11, 2016, that is Continue Reading

Retaliation and whistleblower claims in healthcare expected to remain high

The number of retaliation and whistleblower claims in the US continue to rise. According to data released by the Equal Employment Opportunity Commission (EEOC), retaliation claims made up 44.5 percent of all charges filed in 2015.  Also, the Occupational Safety and Health Administration (OSHA) reported a 6 percent increase in the number of whistleblower cases filed in FY 2015.  The increase in retaliation and whistleblowing claims is especially felt in the healthcare industry where whistleblowers collected a little over $330 million in rewards from False Claims Act (FCA) cases.  Under the FCA, individuals who report fraud and false claims against … Continue Reading

2016 Defend Trade Secrets Act creates federal cause of action for theft of trade secrets

(and don’t forget to update your handbooks or employment agreements)

Congress passes Defend Trade Secrets Act of 2016

Yesterday, Congress broke new ground in federal law, passing the Defend Trade Secrets Act of 2016.

Once it receives the expected signature from the President, the DTSA will create a federal private cause of action for misappropriation of trade secrets. Previously, federal protection of trade secrets was confined to seldom-used criminal provisions, and civil injunctive relief if requested by the Attorney General. See 18 U.S.C. §§ 1832, 1836.

2016 Defend Trade Secrets Act’s new seizure provision

Although the new … Continue Reading

Dutch senate passes Act House for whistleblowers

On 1 March 2016, the Dutch senate adopted the Act House for whistleblowers (the Act). The Act introduces an independent and impartial governmental institution that investigates wrongdoing and assists employees in disclosure proceedings: the House for Whistleblowers. In addition, the proposal introduces several rules to protect whistleblowers. The Act is expected to come into force on 1 July 2016. Below, the most important topics are discussed.

The House for Whistleblowers

The House’s department of advice will inform, advise and support employees who have a suspicion of wrongdoing. The Act defines wrongdoing as an act or omission that puts public interests … Continue Reading

Sexual harassment in Toronto’s restaurants

Recently, allegations of sexual harassment in the kitchen of a trendy Toronto restaurant have ignited a dialogue about workplace harassment. While this doesn’t excuse it, industry veterans aren’t surprised by the complaint, saying that many of Canada’s restaurants have a workplace culture that is overwhelming male, close-knit, and full of sexualized banter.

The employee at the heart of the controversy says she was aware of the industry’s reputation when she accepted the job. “I just thought this came with the job and it was something I just had to overcome,” she reports.

In Ontario, sexual harassment in the workplace … Continue Reading

The Small Business, Enterprise and Employment Act 2015 – new employment legislation in the UK

The Small Business, Enterprise and Employment Act 2015 (the SBEEA) received Royal Assent in the UK on 26 March 2015, although most of the employment provisions contained in Part 11 require a commencement order to bring them into force. It is therefore not certain when many of the provisions listed below will have effect. The exception is the provisions on employment tribunal postponements which came into force on 26 March 2015 .

 

  • Equal Pay Transparency: Section 147 of the SBEEA requires that as soon as possible and by no later than 26 March 2016 regulations must be made
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Does an employee working in Australia for a British company have the protection of UK employment rights?

This post was contributed by Jonathan Iyer, Trainee, Norton Rose Fulbright LLP (London) 

Employees in Great Britain have rights under the Employment Rights Act 1996 not to be unfairly dismissed and not to suffer any detriment for whistleblowing. Can an employee based in Australia working for a British company under a remote working arrangement still seek the protection of these rights under UK legislation? Yes, says the Employment Appeal Tribunal (the EAT) in a recent case.

The employee in question originated from Melbourne, Australia and had worked as a Finance Manager for a not-for-profit company in its London office for … Continue Reading

Whistleblowing – what protection do employees have in Hong Kong?

Notwithstanding the growing global trend in the adoption of express whistleblowing laws (e.g. the US, the UK and Japan), the Hong Kong government has not yet shown any sign of following suit.  So, what protection do employees have if they “blow their whistles” on wrongdoers in their workplace?

 Whistleblowing protection under statue/common law

There is currently no legislation offering comprehensive protection to whistle-blowers in private sector employment in Hong Kong. However, employees do have the following protection under certain ordinances and common law:

1 . Employment Ordinance

An employee giving evidence in proceedings or inquiries relating to the enforcement of … Continue Reading

Obamacare: does it hide a potent whistleblower pill?

The Affordable Care Act (ACA)—or “Obamacare”—has gotten plenty of attention due to technical glitches with the HealthCare.gov website, consumers’ difficulties obtaining (or keeping) insurance through the exchanges, and Health Secretary Sibelius’s recent resignation.

But some notable provisions of the ACA have gone largely unremarked—particularly an amendment to Title 29 of the U.S. Code.

Added by the ACA, § 218c of Title 29 not only protects employees who receive ACA healthcare credits or subsidies, it also shields employees who:

  1. report violations of “this title”;
  2. testify, assist, or participate in a related proceeding; or
  3. object to or refuse to participate in violations
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