A crucial aspect of whistleblowing is the risk of negative consequences for the reporting person. In this context, Directive 2019/1937 uses the term "retaliation," meaning retaliatory action. Therefore, it is crucial to ensure protection and develop procedures and mechanisms that mitigate the risks borne by reporting individuals.
In order to ensure effective whistleblower protection, the EU has formulated a very broad definition of retaliation, specifying that it "means a direct or indirect act or omission occurring in a work-related context which is triggered by an internal or external reporting or public disclosure and which causes or is likely to cause unjustified prejudice to the reporting person" (Article 5(12) of Directive 2019/1937).
The regulations provide an open catalogue of such unacceptable behaviours, which means that they can take various forms as long as they meet the conditions defining this phenomenon.
These include in particular:
- suspension from duties, dismissal – regardless of its procedure, and even termination of the contract by mutual consent or by invoking fictitious circumstances concerning the employer;
- demotion or suspension of promotion;
- change of place or hours of work;
- limitation of the possibility of participating in training or negative evaluation of work results;
- discrimination, unfavorable or unfair treatment, intimidation, mobbing or exclusion;
- failure to convert a fixed-term employment contract into an indefinite-term employment contract where the employee could have had a legitimate expectation that he or she would be offered permanent employment.
More subtle behaviors toward whistleblowers will also be prohibited, such as damaging the reputation of the whistleblower or their supporters or loved ones. This may also apply to social media activity. Furthermore, the regulations also prohibit actions that might at first glance indicate concern for the whistleblower's health or suggest health problems, such as referrals for medical examinations, particularly psychiatric examinations.
The above-mentioned prohibition of all forms of retaliation against whistleblowers is to be reinforced in the legislation of the Member States by providing access to so-called support measures.
Directive 2019/1937 provides examples of assistance that reporting individuals should expect, including: free access to information and legal advice on procedures and the rights of the person concerned. Appropriate protection for the reporting individual may take various forms, depending on the specific situation.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of April 16, 2024
author:
