Under the whistleblowing regime in the Corporations Act 2001 (Cth) (CA), it is unlawful for someone to cause or threaten to cause detriment to, or victimise, a person because they believe or suspect that the person has made, may have made, or could make a whistleblowing disclosure (Whistleblower). Very substantial civil and criminal sanctions apply for both the individual engaging in detrimental conduct and the corporation that employs the Whistleblower and the antagonist.… Continue Reading
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
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
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
Amendments to the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth) take effect from 1 July 2019 ushering in significant changes to Australia’s whistleblowing laws. Chief among the key changes is a requirement on public companies and large proprietary companies to have a compliant whistleblowing policy by 1 January 2020. A failure to have such a policy will be a criminal offence attracting a maximum penalty of $126,000.
As it is unlikely existing whistleblowing policies will be fully compliant with the new whistleblowing regime, it is important that organisations review their current arrangements for dealing … Continue Reading
On the scope of subject access requests under the EU General Data Protection Regulation (GRPR) in the context of compliance and whistle-blowing regimes, the Regional Labour Court (Landesarbeitsgericht) of Stuttgart decided that an employer was required not only to provide an employee with the records containing performance and behavioural data, but also to disclose information regarding internal investigations. This is the first reported successful enforcement of a data subject access right under Article 15 GDPR before a regional labour court in Germany. (The judgment was handed down on 20 December 2018 but has just been published … Continue Reading
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
In late December 2017, the Australian Government tabled a Bill aimed at improving protection for whistleblowers in the corporate, financial, credit and tax sectors.
If passed, the new legislation will result in a range of changes taking effect from 1 July 2018.… Continue Reading
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
French employment law does not yet provide for a comprehensive and consistent set of rules for the purpose of protecting whistleblowers. Instead, French employment law tackles issues arising out of whistleblowing situations through a relatively meager set of legislative provisions.
Under currently applicable legislation, no employee can be disciplined, dismissed or discriminated against for having reported, in good faith, various sets of facts such as moral and sexual harassment, discrimination, corruption, facts representing a serious risk to public health or environment, facts constituting a crime or an offence, etc.
Aside from such specific regulations, whistleblowers may also benefit … Continue Reading
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
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
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
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
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:
- report violations of “this title”;
- testify, assist, or participate in a related proceeding; or
- object to or refuse to participate in violations
The legislative proposal known as ‘House for Whistleblowers’ is pending in the Netherlands. The proposal 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 situation under current Dutch law and under the House for Whistleblowers Act will be described below.
Current protection under Dutch law
In the Netherlands there is currently no specific legislation on whistleblowing. Protection of employees depends largely on self-regulation. Under the Dutch Corporate Governance Code, companies listed on the stock exchange must have … Continue Reading
In the 1970s, a particular brand of cigarettes geared towards women used the tag line “you’ve have come a long way baby,” and today, the same could be said for the term “whistleblower.”
In the early to mid-20th century, individuals who reported illegal activity were often referred to in pejorative terms such as “rats” and “snitches.”
But in 1970, consumer advocate Ralph Nader, who would later gain greater fame as the independent party candidate who threw the 2000 presidential election into turmoil, coined the term “whistleblower,” and since that time, it has since evolved into a positive term—someone of … Continue Reading
There is no legal protection for whistleblowers in Venezuela and it is not common in practice.
However, many transnational and local companies in Venezuela have policies and code of conducts protecting those who step up and expose Corruption, fraud, mismanagement, breaches of legal obligations. Some of these companies have hot lines through which employees are able to file a complaint with no obligation to say their names.
In those companies were no policies on whistleblowing protection are in force, workers who are willing to expose Corruption, fraud, mismanagement and/or breaches of legal obligations have no:
- Accessible and reliable channels to