Sports referees obviously! But in legal terms is was American political activist Ralph Nader in 1972 who defined it as “an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is involved in corrupt, illegal, fraudulent or harmful activity.”
Clear internal channels for reporting are foreseen by the European Commission proposal. In theory, requiring employers to introduce and maintain effective procedures should be unnecessary, because common sense suggests that promoting internal reporting is more desirable than suffering the consequences of wrongdoing being disclosed externally. Nevertheless, few Member States require employers to have whistleblowing policies/ procedures and the few that do exist usually apply only to the public sector.
It should also be made absolutely clear that unions are fully consulted on such whistleblowing arrangements, that employer-based procedures can be negotiated in the framework of collective bargaining agreements and that unions are a protected channel for reporting wrongdoing.
The definitions of wrongdoing are necessarily broad and can include breaches of both civil and criminal law, violations of human rights, as well as risks to public health and safety, or to the environment.
In terms of protecting whistleblowers, the broader the scope the better. There may be forms of maladministration or mismanagement that are not unlawful, but nevertheless have serious consequences for wider society as well as workers.
Practical problems can also be caused by the use of imprecise terminology, for example the word “serious” is often used as a qualifying term. But potential whistleblowers might need to seek advice about what this word means in practice and be deterred from reporting altogether.
A “public interest” test is problematic because it makes it difficult to advise someone whether or not they will be protected if they raise a concern. Is the “public interest” to be viewed from the perspective of the whistleblower at the time of the disclosure or applied objectively by a court or tribunal if legal proceedings ensue? Indeed, what is the relevance of applying a “public interest” test to the private sector?
Our view is that the public interest will be satisfied if a whistleblower who has reasonable grounds to believe that a form of (statutorily defined) wrongdoing is occurring, has occurred or is likely to occur discloses this fact to an appropriate recipient.
Another source of both uncertainty and debate is the use of the words “good faith.” This is yet another imprecise term both in principle (if what is reported is accurate, why is the reason for reporting relevant? ) and in practice (how is a person’s motive to be ascertained?).
The most important factor is that a person has reasonable grounds to believe that the information disclosed is true. Conversely, if individuals knowingly disclose false information they would not be protected against disciplinary action and would also expose themselves to civil law sanctions.
In accordance with Principle 25 of the Council of Europe Recommendation 2014, we believe a minimum standard for any effective whistleblower law should provide that where a claimant demonstrates she had reasonable grounds for believing in the accuracy of the information reported, and that she has suffered a reprisal, the burden of proof shifts to the respondent to show by clear and convincing evidence that it would have taken the same action if the disclosure had not been made. This is typically understood as a reversal burden of proof, but given the massive imbalance of power between whistleblowers and corporations or organisations, it is particularly important for an EU Directive to provide a unified approach to this issue.
It should go without saying that whistleblowers should be protected against any form of retaliation, but, in practice, they often face broad and lifelong consequences.
In the workplace there must be protection against dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers, reductions in or deductions of wages, harassment or other punitive or discriminatory treatment. It is also very important that there are protections against civil and criminal liability.
Interim relief should also be available to a person who has suffered retaliation. We also feel strongly that those who have been unlawfully deprived of their job as a result of whistleblowing should be afforded the right to reinstatement.