Key Differences Between UK and EU Whistleblowing Laws

Whistleblowing Directive

UK Legislation[2]

Which Organizations Does it Apply to?

• Any organization (public or private) with at least 50 workers (Art. 8(3), Whistleblowing Directive).

• Protection granted to workers (see definition below) in all sectors (no threshold).

Protection

Who is Protected?

• Wider scope: Also protects self-employed individuals, unpaid trainees/volunteers, contractors, shareholders, board members (including non-executives) and facilitators (i.e., individuals and legal entities connected to the whistleblower) (Art. 4 and Recitals 37-41 and 55, Whistleblowing Directive).

• Narrower scope: Protects current and former employees and “workers” (extended definition includes agency workers, freelance workers, seconded workers, homeworkers and trainees, non-executive directors, and LLP members), and overseas employees (Sections 43A, 43K, and 230(3), ERA 1996).

Disclosure

• Wider protection: Expressly prohibits threats and attempts of retaliation (Art. 19 and Recitals 39-41, Whistleblowing Directive).
• Narrower scope of disclosure: Relates to specified breaches of EU law only (Art. 2(1) and Recital 19, Whistleblowing Directive), although Member States can expand this scope in their implementing laws (Art. 2(2) and Recitals 5 and 24, Whistleblowing Directive – see our Implementing Laws At-a-Glance page for details).
• Objective test: The whistleblower must have reasonable grounds to believe the reported information falls within the Whistleblowing Directive’s scope and was true at the time of reporting (Art. 6(1) and Recital 32, Whistleblowing Directive).

• Similar/technically narrower protection: Protection only for actual dismissal and detriment (although the scope of detriment is broad, e.g., includes harassment and victimization (which in practice includes threats), failure to prevent reprisals by colleagues or to address grievances about such reprisals).
• Broader scope of disclosure: Protection extends to breaches of any legal obligation.
• Subjective test: The worker must reasonably believe that the disclosed information shows one of six types of “relevant failure” and is in the public interest (Section 43B(1), ERA 1996).

Whistleblower Liability

• Unless acquisition or access of the information is a criminal offense, whistleblowers will not be liable for acquiring or accessing information that is subsequently reported/publicly disclosed in accordance with the Whistleblowing Directive, even if such acquisition or access breaches any contractual or confidentiality restrictions (Art. 21(3), Whistleblowing Directive).

• Whistleblowing provisions represent an exception to an employee’s normal duty of confidentiality. Any provision in an agreement (including a settlement agreement) is void in so far as it purports to prevent a worker from making a protected disclosure (Section 43(J)(1), ERA 1996).

Burden of Proof

• Initially lies with worker, and then shifts to organization: If the whistleblower establishes that the report was made pursuant to the Whistleblowing Directive and they suffered a detriment, it is presumed that the detriment was made in retaliation (Art. 21(5), Whistleblowing Directive).

The burden then shifts to the organization to prove the detrimental measure was based on duly justified grounds.

• Initially lies with worker, and then shifts to organization: The burden of proof is on the whistleblower to show that:
• They made a protected disclosure;
• The detrimental treatment and/or dismissal occurred; and
• In dismissal cases where the employee has less than two years’ service, the protected disclosure is the reason for dismissal.

The burden then shifts to the employer:

• Detrimental treatment: If the employer cannot prove an admissible reason for the treatment (Section 48(2), ERA 1996), the tribunal can (but is not obliged to) infer that the detriment was caused by the protected disclosure.
• Dismissal: Where an employee’s length of service qualifies them for an ordinary unfair dismissal claim, the employer must show the reason for dismissal. Where the requisite qualifying service does not exist, as noted above, the employee must show the reason for dismissal.

Remedy (Penalties)

• Member States must legislate for penalties regarding:
• Retaliation and breach of confidentiality (Art. 23(1), Whistleblowing Directive); and
• Whistleblowers who knowingly report or publicly disclose false information (Art. 23(2) and Recitals 101-102, Whistleblowing Directive).

• No penalties: The usual remedies for unfair dismissal and detrimental treatment apply – neither are penal but there is no upper limit on the amount of compensation that can be awarded.

Procedural Requirements

Internal Reporting Channels

• Requirement for private organizations (with at least 50 workers) to adopt internal reporting channels and procedures (Arts. 8(1)-(3) and Recital 59, Whistleblowing Directive).

• No requirement to put in place formal whistleblowing channels; however, disclosures are only protected if made through one of seven permissible methods (including by raising by any method within the employer’s organization) (Sections 43C-43H, ERA 1996).

Time Frame

• Time frame for handling reports:
• Receipt of report must be acknowledged within seven days (Art. 9(1)(b), Whistleblowing Directive); and
• Feedback must be provided within a reasonable time frame, not exceeding three months from receipt acknowledgment (or from when the acknowledgment should have been provided) (Art. 9(1)(f) and Recital 58, Whistleblowing Directive). Note that some Member States have prescribed shorter time frames for acknowledging and following up on reports.

• No time frame or statutory requirement to produce feedback regarding the report or action taken.

External Reporting Channels

• Requirement for Member States to designate a national authority that will implement external reporting channels, allowing information on whistleblowing protections to be accessible (Arts. 11(1)-(2) and Recital 63, Whistleblowing Directive).

• No requirement for a national authority and no such UK authority currently exists. Note that “external disclosure” is the last port of call of the seven permissible methods of disclosure.

Records

• Requirement for records to be made for oral reports and physical meetings (Art. 18, Whistleblowing Directive).
• The whistleblower should have the opportunity to check, rectify and agree the record by signing it (Art. 18(4), Whistleblowing Directive).

• No additional requirement to keep records, however organizations will likely maintain records in practice to demonstrate compliance with their employment obligations.