Whistleblowing

In Croatia, the status of whistleblowers and whistleblower protection (WBP) is governed by the Act on the protection of persons who report irregularities (WBP Act). The WBP Act came into force on 23 April 2022 and replaced the previous Croatian WBP legislation of 2019, introducing amendments to implement Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law (the Directive).

The status of whistleblowers in Germany, as in other EU member states, is primarily governed by European law. The relevant legislation is Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons reporting infringements of Union law (EU Whistleblower-Directive).

The German legislature has incorporated the EU-Whistleblower-Directive into German law by enacting the Whistleblower Protection Act (“Hinweisgeberschutzgesetz”) which – largely – entered into force on July 2, 2023.

If the Whistleblower Protection Act (hereinafter referred to as “HinSchG”) should meet specific concerns under European law, this will be pointed out separately in the following.

In the UK, the legal framework for whistleblowers is set out in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998 and the Employment and Regulatory Reform Act 2013).

The UK framework does not fully comply with European standards set out in the EU Directive 2019/1937/EU (the Directive).  Especially now that the UK has left the EU, it is not known whether UK whistleblowing legislation will be amended to reflect the workers’ rights and best practices introduced by the Directive.

Under the WBP Act, a whistleblowing procedure must be implemented by:

• any company falling within the scope of EU acts referred to in Part I.B and Part II of the Annex to the Directive, regardless of the number of employees employed by the  company; and
• any company employing 50 or more employees.

Under unofficial interpretations by the officials of the Croatian Ministry of Justice and Public Administration (the Ministry), where applicable, the headcount threshold should take into account only persons employed with the company (ie, persons engaged by the company based on an employment contract) and ordinarily working for the company anywhere in the world (ie, it does not include persons engaged otherwise, such as temporary agency workers or persons engaged by the company’s group company).

To implement the whistleblowing procedure, the company must adopt a whistleblowing policy establishing procedural rules and appoint a person competent for receiving and following up on whistleblowing reports, communicating with the whistleblowers and conducting the protection procedure in connection with the whistleblowing report (WBP officer) and their deputy.

In principle, companies that regularly employ 50 or more employees are obliged to set up an internal reporting system (section 12 (1), (2) HinSchG). For companies with between 50 and 249 employees, this obligation will only apply from 17 December 2023 (section 42 HinSchG).

For certain employers, particularly in the financial and insurance sectors or for data provision companies, the obligation to set up an internal reporting office applies irrespective of the number of employees as of the entry into force of the Act (section 12 (3) HinSchG).   

There is no legal requirement in the UK for companies to implement a whistleblowing procedure or policy or any requirements as to the content or form of any procedure or policy if one is adopted. However:

• The Department for Business Innovation and Skills has published guidance entitled Whistleblowing: Guidance for Employers and Code of Practice which identifies that it is best practice for an employer to have a whistleblowing policy or appropriate written procedure. The guidance can be found here.
• The UK Corporate Governance Code set by the Financial Reporting Council recommends public-listed companies implement a whistleblowing procedure.
• Financial services firms regulated by the Financial Conduct Authority or the Prudential Regulation Authority will be subject to regulatory requirements that require the operation of applicable whistleblowing procedures.

Yes, it is possible to have a whistleblowing procedure applicable at a Group level, but only in addition to an internal reporting channel. This is because the WBP Act states that each company must have its own internal reporting channel (meaning a WBP officer and their deputy appointed by the company). However, neither the Directive (as interpreted by the European Commission) nor the WBP Act prohibits the company from having a separate central reporting channel at a Group level, provided that such a channel is available in addition to (co-existing with) a reporting channel set up under Croatian law.

According to the explanatory memorandum of the Whistleblower Protection Act, it is legally permissible to implement an independent and confidential internal reporting office as a "third party" within the meaning of article 8(5) of the EU Whistleblower Directive at another group company (eg, parent company, sister company or subsidiary), which may also work for several independent companies in the group (section 14 (1) HinSchG). However, the European Commission has already announced in two statements during the legislative process that a group-wide whistleblower system does not meet the requirements of the EU Whistleblower Directive. The question of the compatibility of the regulation with EU law will only arise in practice at a later stage, provided that this question needs to be clarified in court. 

The Whistleblower Protection Act in line with the EU Directive further provides that several private employers with between 50 and 249 employees employed on a regular basis may commonly implement and operate an internal reporting office to receive notifications. However, the legal obligation to take action to remedy the violation and the corresponding duty to report back to the person making the report has to remain with the individual employer.   

Yes. Employers can implement a whistleblowing procedure at a Group level.

Yes, a failure by the company to adopt or implement an internal whistleblowing policy by 23 June 2022, or appoint a WBP Officer and their deputy by 23 July 2022 may each result in liability for an administrative offence and a related fine, which may be up to about 4,000 EUR for the  company, and up to about 1,350 EUR for the responsible individual within the company.

If there are no whistleblowing procedures in the company (ie, an internal reporting system is not implemented and operated), this constitutes an administrative offence punishable by a fine. This fine may amount to up to 20,000 EUR (section 40 (2) No. 2, (5) HinSchG).

At this point, it should be noted that there is a high incentive for employers to implement an internal reporting channel, since the external reporting channel is available to the whistleblower in any case. Consequently, if an internal reporting office were not implemented or operated, the whistleblower would be forced to report directly to the external reporting office. As a result, the employer would not be able to make internal corrections without the reported information leaving the company.

No, because there is no underlying legal requirement under the Employment Rights Act 1996 for companies to implement a whistleblowing procedure or policy.

Yes, the involvement of employee representative bodies (the works council or, if there is no works council, a union trustee), provided that any such body exists with the  company, is two-fold:

• the company must consult with the works council or union trustee regarding adoption of the whistleblowing policy – failure to do so would result in the adopted whistleblowing policy being null and void; and
• the company must appoint the persons requested by the works council or union trustee as the WBP Officer and deputy; if no such request is made by the works council or union trustee, the  company may appoint the WBP Officer and deputy at its discretion.

Although the implementation of a whistleblower system is based on a legal obligation, the works council only has to be involved under certain circumstances.

At first, the employer is, in principle, already obliged to inform the works council in good time and comprehensively about everything it requires to carry out its duties. This information requirement should enable the works council to review whether co-determination or participation rights exist or whether other tasks have to be carried out according to the German Works Constitution Act (BetrVG).

For instance, instructions concerning the orderly conduct of employees are subject to co-determination. These instructions are intended to ensure an undisturbed work process or to organise the way employees live and work together in the company.  If, in the course of the implementation of a whistleblower system, the already existing contractual obligations are extended or regulations regarding the specific reporting procedure are introduced (eg, in the form of a reporting obligation on the part of employees), the organisational behaviour would be affected and the works council must therefore be involved (section 87 (1) No. 1 BetrVG).

Furthermore, in the context of setting up an internal reporting channel, the Whistleblower Protection Act only stipulates that whistleblowers must be given the option of submitting a report to the whistleblowing system in text form or verbally. This could, of course, also be provided via digital channels - eg, via software- or web-based solutions. Should the introduction and use of such technical equipment in the relevant case allow the employer to monitor the behavior or performance of employees (eg, those who deal with the complaint), further co-determination rights of the works council according to section 87 (1) No. 6 BetrVG can be triggered.   

There is no specific legal requirement in the Employment Rights Act 1996 for employee representative bodies to be involved in (or otherwise agree to) the implementation of a whistleblowing procedure or policy. However, the rules in place with existing employee representative bodies may require consultation on any new policy or procedure and, in any event, it is best practice to involve employee representatives in the implementation of a whistleblowing system.

The WBP Act does not contain rules on how the whistleblowing policy should be communicated to employees and other eligible whistleblowers, other than stating that the policy should be easily accessible to all persons within the work environment (as defined in question 12), understandable, and effective in encouraging the primary use of internal reporting channels or systems for reporting breaches or irregularities. In light of this, the publication of the whistleblowing policy should be made following the provisions of Croatian labour legislation.

Under the Croatian Employment Act and implementing regulations, any employment-related policy (which would include the whistleblowing policy) must be signed by the management of the company and published on a bulletin board in the company’s premises (specifically stating that the policy will come into force on the ninth day after publication, at the earliest). It is recommended that all eligible whistleblowers (ie, both employees of the company, and persons not employed by the company) are notified of the company having in place a whistleblowing policy and that they can receive a copy of such policy upon their request.

The Whistleblower Protection Act does not oblige the company itself to publish any information regarding the internal reporting office or the internal reporting channel implemented. However, the internally implemented reporting office must have clear and easily accessible information available on the external reporting procedure and relevant reporting procedures of European Union institutions, bodies or agencies (section 13 (2) HinSchG).

The current explanatory memorandum to the Whistleblower Protection Act also contains the more detailed, but not legally binding, reference that the information can be made available via a public website, company intranet or a bulletin board that is accessible to all employees. In this context, it is recommended that the company also refers to the internally implemented reporting office or the internal reporting channel in the same way. This helps to counteract the risk that potential whistleblowers will report primarily via the external reporting channel.

Furthermore, the German Supply Chain Due Diligence Act (LkSG) also provides for the implementation of complaint mechanisms so that the regulatory requirements of companies can also be met through a uniform reporting system. Within its scope of application, the LkSG also provides for the publication of procedural rules for such a reporting system in text form as well as for annual reporting obligations on what measures the company has taken as a result of complaints.

According to the Whistleblowing: Guidance for Employers and Code of Practice published by the Department for Business Innovation and Skills (BEIS), it is best practice for the whistleblowing policy or procedures to be in writing and easily accessible to all workers. BEIS also recommends that awareness of the policy or procedures is raised through all available means such as staff engagement, intranet sites and other marketing communications.

Under the WBP Act, the internal reporting channel is a WBP officer and their deputy, as appointed by the company. This officer and deputy are solely authorised to receive the whistleblowing reports and conduct investigations (ie, the conduct of these actions cannot be outsourced to any third person).

However, the WBP Act does not preclude companies from appointing individuals employed or hired by an external service provider as a WBP officer or deputy (noting, however, that the company may make such appointment at its own discretion only if these appointments have not been proposed by either the works council, or, if there is no works council, the union trustee, or if there is no works council or union trustee, by at least 20% of the  company’s employees).

Even if the company appoints individuals employed or hired by an external service provider, the appointed persons must keep confidential the identity of any whistleblowers and any information contained in the whistleblowing report, and will not be able to directly involve external service providers in the investigation without express consent from each whistleblower. However, the  company may engage an external service provider to indirectly assist these appointed persons (regardless of whether the individuals appointed are employed by the  company or by the external service provider, and regardless of whether the whistleblower provides express consent for disclosure of his or her identity and the content of the report), if such assistance will not lead to disclosure to that provider of the identity of the whistleblower and any information contained in the whistleblowing report.

In principle, the Whistleblower Protection Act intentionally does not specify which persons or organisational units are best qualified to carry out the tasks of the internal reporting office or to manage the corresponding reporting channel. However, the internal reporting office may not be subject to any conflicts of interest and it also must be independent. The EU Whistleblower-Directive mentions, for instance, the head of the compliance department or the legal or data protection officer as possible internal reporting offices.

If, in addition to the (internal) persons responsible for receiving and processing internal reports, other (external) persons have to be involved in a supporting activity, this supporting activity is legally only permissible to the extent that is necessary for the supporting activity. This applies, for example, to IT service providers that provide technical support for reporting channels.

It is also legally permissible to appoint a third party to carry out the tasks of an internal reporting office, including the reporting channel (section 14 (1) HinSchG). Third parties may include lawyers, external consultants, trade union representatives or employee representatives.

However, engaging a third party does not relieve the employer of the obligation to take appropriate action to remedy a possible violation. In particular, for follow-up actions to check the validity of a report, there must be cooperation between the commissioned third party and the employer.

The reporting channel can be outsourced. Where an employer’s whistleblowing policy or procedure authorises disclosure to a third party (eg, an external hotline), UK law will treat a disclosure to the third party the same as a disclosure to the employer.

The Department for Business Innovation and Skills guidance on whistleblowing identifies that larger UK organisations may have a designated team who can be approached to make a disclosure. The guidance recommends that smaller organisations should have at least one senior member of staff as a point of contact for whistleblowers. However, the guidance also acknowledges that there are commercial providers who can manage a whistleblowing process on behalf of the employer.

The WBP Act does not provide for any specific obligations concerning the protection of data collected related to the whistleblowing procedure, other than that any processing of personal data must be carried out under EU and national laws regulating the protection of personal data.

In light of this, the record-keeping of collected data must be conducted in a way that access to records is restricted to authorised persons (ie, the WBP officer and their deputy) and that appropriate measures concerning the storage of documents (for example storage cabinets with locks and password-protected databases) are taken to prevent unauthorized access. The retention period has not been specified by either the WBP Act or any guidelines or regulations issued by the competent authorities. Consequently, it is advisable that the retention period is provided in the WBP policy and that the collected data is retained for no longer than five years since receipt of the report or until completion of any legal proceedings associated with the report, whichever is longer.

The internal reporting office implemented by the employer is, initially, authorised to process personal data insofar as this is necessary for the fulfilment of its task under the Whistleblower Protection Act (10 HinSchG). The wide-ranging processing authority allows the personal data contained in the reports to be both received and analysed by the reporting office. In addition, new personal data may be recorded and further processed during the implementation of the follow-up measures.

The employer's obligation to protect the data collected in the course of the whistleblowing procedure is then directly based on the European General Data Protection Regulation (GDPR) and the German Federal Data Protection Act. This means, for instance, that data processing has to be limited to the extent necessary to fulfil the tasks of the internal and external reporting channel – data minimisation principle, (article 5 (1) lit. c) GDPR).

Finally, the processing of personal data is complemented by the confidentiality requirements of internal (and external) offices, (section 8 HinSchG).

When implementing and operating whistleblowing procedures, employers must comply with the relevant UK data protection requirements, which implement those set out in the EU’s General Data Protection Regulation (the GDPR). When an individual makes a disclosure, in most cases this will include the personal data of related individuals. Employers must ensure that they have the requisite technical and organisational measures in place to secure any personal data disclosed or obtained as part of the whistleblowing disclosure or subsequent investigation.

The following precautions should be taken into account by the company when setting up a whistleblowing procedure:

• Language of the whistleblowing policy – even though the WBP Act does not explicitly provide that the whistleblowing policy must be available in Croatian, the WBP Act requires that information on the internal whistleblowing procedure must be easily accessible, understandable and effective. If the whistleblowing policy is not prepared in Croatian, the company may run the risk of: the employee claiming that he or she did not properly understand the policy; or in the case of inspection or dispute, the inspection body or court holding that a policy made only in English, or a language other than Croatian, is null and void as not being easily understandable.
• Appointment of WBP officer and deputy – given that a company must appoint a WBP officer and their deputy at the request of either the works council, union trustee, or 20% of employees of the company (if there is neither a works council nor union trustee), it is advisable that the  company provides in the whistleblower policy that any candidate should be a person of trust and competent to conduct the duties of a WBP officer.
• WBP officer’s resources – the company must ensure that the WBP officer and their deputy have the resources required to effectively perform their duties, such as providing the officer with a personal computer or laptop and a separate email address for receiving whistleblowing reports, a direct telephone line for receiving whistleblowing reports, a dedicated office for conducting meetings with whistleblowers, and equipment for keeping records of reports.

The reporting channels must be designed in such a way that only the persons responsible for receiving and processing the reports as well as the persons assisting them in fulfilling these tasks have access to the incoming reports. It must, therefore, be ensured that no unauthorised persons have access to the identity of the person making the report or to the report itself. This has implications for the technical design of the internal reporting channel.

Also, the persons entrusted with running the internal reporting office must indeed be independent in the exercise of their activities and the company must ensure that such persons have the necessary expertise. Therefore, smaller or medium-sized companies should especially assess whether it will be more efficient to assign an experienced external ombudsperson to receive and initially process incoming reports. However, the ombudsperson who takes the call in this case is a witness bound to tell the truth, even if this is, for example, a company lawyer.

According to the German Whistleblower Protection Act, the internal whistleblowing reporting office is not obliged by law to accept or process anonymous reports; however, they “shall” be processed.  Companies should therefore assess carefully whether they provide systems that enable anonymous reports, as this may increase the number of abusive reports and make enquiries impossible. On the other hand, some ISO standards require the receipt of anonymous reports. Therefore, should a company seek certification according to these ISO standards, the whistleblower procedure to be set up must allow for the processing of anonymous reports.

The Department for Business Innovation and Skills guidance on whistleblowing recommends, as best practice, several practical considerations when setting up a whistleblowing procedure, including, but not limited to:

• employers should provide training to all workers on how disclosures should be raised and to managers on how to deal with disclosures;
• organisations should ensure that there are a range of alternative persons who a whistleblower can approach if a worker feels unable to approach their manager; and
• any clauses in any settlement agreements or non-disclosures agreements (including confidentiality clauses in the employment contract) must not prevent workers from making disclosures in the public interest.

The material scope of the WBP Act encompasses the following breaches or violations (under the WBP Act they are named “irregularities”):

• related to the scope of application of the EU Acts listed in Part I of the Annex to the Directive;
• affecting the financial interests of the EU, as stated in article 325 of the Treaty on the Functioning of the European Union and further defined by relevant EU measures;
• relating to the internal market, as stated in article 26(2) of the Treaty on the Functioning of the European Union, including breaches of EU rules on competition and state aid, and breaches of corporate tax rules or arrangements to create a tax advantage contrary to the applicable corporate tax legislation; and
• relating to other rules of Croatian law, the breach of which undermines the public interest.

The WBP Act defines the term “irregularities” as actions or omissions that are unlawful and relate to or are incompatible with the goal or purpose of the above-stated legislation.

The Whistleblower Protection Act´s  material scope of application goes beyond European legal requirements. It extends the material scope of application to all violations that are subject to punishment (section 2 (1) No. 1 HinSchG). Additionally, violations subject to fines are included insofar as the violated regulation serves to protect life, body, health or the rights of employees or their representative bodies (section 2 (1) No. 2 HinSchG). The last alternative covers not only regulations that directly serve occupational health and safety or health protection, but also related notification and documentation requirements, for example under the Minimum Wage Act. Thus, as a result, section 2 (2) No. 2 HinSchG covers the majority of administrative offences in the context of employment.

Finally, the Whistleblower Protection Act also provides for a list of infringements that predominantly correspond to the relevant areas of law according to the recitals of the EU Whistleblower Directive.

In the UK, only certain “protected disclosures” will be protected under the Employment Rights Act 1996. There are several conditions, one of which is that the disclosure of the information must “tend to show” that one or more types of failures or wrongdoing has occurred or is likely to occur (each a “relevant failure”):  

• a criminal offence has been committed, is being committed or is likely to be committed;
• a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject;
• a miscarriage of justice has occurred, is occurring or is likely to occur;
• the health or safety of any individual has been, is being or is likely to be endangered;
• the environment has been, is being or is likely to be damaged; or
• information tending to show any matter falling under the categories above is being or is likely to be deliberately concealed.

There is no requirement that the qualifying disclosure must relate to a relevant failure or failures of the employer. The disclosure can relate to a relevant failure of the employer, an individual employed or engaged by the employer or a third party.

There is also no requirement that the relevant failure occurs or would occur in the UK. It could occur, or be occurring, outside of the UK.

The other conditions are set out in question 14.

Yes, the WBP Act specifically excludes its application in the matters of defence and national security, except where such matters are covered by Union acts listed in Part I of the Annex to the Directive. Furthermore, the governmental bodies competent for matters of defence and national security must regulate the protection of whistleblowers and the reporting procedure in the areas of key security and defence interests (specifically the protection of key security and defence interests). To our knowledge, there are still no adopted or publicly available regulations covering WBP and reporting procedures in the areas of key security and defence interests.

In addition, if the Union acts listed in Part II of the Annex to the Directive provide for separate rules on reporting irregularities, the WBP Act restricts its application only to matters that have not been regulated by such separate rules.

The Whistleblower Protection Act itself does not distinguish between different sectors regarding the internal reporting process. However, it contains an enumerative list of regulations from other statutes that take precedence over the Whistleblower Protection Act for the reporting of information on violations; these regulations are therefore lex specialis compared to the Whistleblower Protection Act (section 4 (1) HinSchG). Priority special provisions are, among others, regulated by the Money Laundering Act, the Banking Act, the Insurance Supervision Act and the Stock Exchange Act.    

The UK Corporate Governance Code recommends public-listed companies implement whistleblowing procedures.

Financial services firms regulated by the Financial Conduct Authority or the Prudential Regulation Authority will be subject to regulatory rules and requirements that govern the terms and operation of their whistleblowing procedures.

Under the WBP Act, a whistleblower is defined as a natural person who reports or publicly discloses irregularities that he or she has learned of within his or her work environment, whereas the term work environment is defined as professional activities in the public or private sector, irrespective of the nature of such activities, within which the whistleblower acquires information on irregularities and within which the whistleblower could suffer retaliation if they reported such irregularities, including when such activity has ceased in the meantime, should start or should have started.

A whistleblower is a natural person who, in the context of his or her professional activity or in the preliminary stages of professional activity, has obtained information about violations and reports or discloses it to the – internal or external – reporting offices provided for under the Whistleblower Protection Act (section 1 (1) HinSchG).

The Whistleblower Protection Act also applies to the protection of persons who are subject to a report or disclosure, as well as other persons who are affected by a report or disclosure, (section 1 (2) HinSchG).

There is no specific legal definition of “a whistleblower” under UK law.

Any person that acquires knowledge of or information on irregularities within their work environment and reports such irregularities under the prescribed reporting procedure may be considered a whistleblower. This includes:

• persons within an employment relationship;
• persons with the status of a self-employed person;
• holders of stocks in a joint-stock company or holders of shares in a limited liability company, as well as persons who are members of the administrative, management or supervisory body of a company, including non-executive members, volunteers, and paid or unpaid interns;
• persons working under the supervision and direction of contractors, subcontractors and suppliers; and
• persons that in any way participate in the activity of the legal or natural person.

Whistleblowers may be employees, but also, for instance, self-employed persons, volunteers, members of corporate bodies or employees of suppliers. In addition to persons who obtain knowledge in advance, such as in a job interview or during pre-contractual negotiations, the scope of protection also includes those for whom the employment or service relationship has been terminated. As a result, the status of a whistleblower is not dependent on formal criteria such as type of employment.

Whistleblowing legislation in the UK protects a wide range of individuals. The following individuals can be a whistleblower:

• employees;
• employee shareholders; and
• an extended definition of workers, including:
  • agency workers;
  • self-employed medical practitioners in the NHS and student nurses/midwives;
  • police officers;
  • homeworkers and freelancers; and
  • trainees.

The level of legal protection will depend on the status of the individual (please see question 23).

Yes, persons reporting or publicly disclosing irregularities will be considered to be whistleblowers if they:

• had a legitimate reason to believe that what they report or publicly disclose is true at the time of making the report or disclosure;
• had a legitimate reason to believe that the information falls within the scope of the WBP Act; and
• make the report or public disclosure as per the rules set by the WBP Act.

To be qualified as a whistleblower, the person providing the information must have obtained the information in the context of his or her professional activity or in the preliminary stages of professional activity. Information about violations falls within the substantive scope of the Act only if it relates to the employing entity or another entity with which the whistleblower is or has been in professional contact.

Yes. In the UK, only certain “protected disclosures” will be protected under the Employment Rights Act 1996. A protected disclosure must satisfy three main conditions. It must:

• be a disclosure of information;
• be a “qualifying disclosure”, meaning that in the reasonable belief of the worker making the disclosure it is made in the public interest and tends to show that one or more types of failures or wrongdoing has occurred or is likely to occur (for details of relevant failures or wrongdoing please see question 10); and
• be made under the specific methods of disclosure depending on the recipient of the disclosure.

Regarding the “methods” of disclosure (ie, to whom disclosure is made), the disclosure requirements range from limited requirements for an internal disclosure to an employer up to more stringent requirements for external disclosures to a third party outside of the employer’s organisation.

Minimum Requirements

A qualifying disclosure is made where the worker makes the disclosure to:

• the employer;
• a third party authorised by the employer to receive qualifying disclosures;
• their legal adviser in the course of obtaining legal advice; or
• to a Government minister if the worker’s employer is a statutory appointed individual or body (for example, an executive non-departmental public body or an NHS body).

In such cases, there are no additional requirements over and above the general conditions 1 and 2 set out above.  

Moderate Requirements

A qualifying disclosure is made where the worker makes the disclosure to:

• a responsible person. In this instance, the worker must reasonably believe the relevant failure relates solely or mainly to:
  • the conduct of a person other than the employer; or
  • any other matter for which a person other than the employer has responsibility; or
• any “prescribed persons” named in a relevant order. This includes, but is not limited to, HM Revenue and Customs, The Office of Communications (Ofcom), the Financial Conduct Authority and the Health and Safety Executive. However, in this instance, a worker must reasonably believe that:
  • the relevant failure is within the remit of the prescribed person; and
  • the information disclosed and any allegation contained in it is substantially true.

Stricter Restrictions

Under UK law, a worker may make an external disclosure to a third-party organisation (eg, the press, and union officials); however, for such disclosures to be protected four additional conditions must be met.

The worker must:

• reasonably believe that the information they have disclosed and any allegation contained in it is substantially true;
• not have made the disclosure for personal gain;
• either:
  • reasonably believe (when they made the disclosure) that they will be subjected to a detriment by their employer if they make a disclosure to the employer or prescribed person;
  • (where there is no prescribed person) reasonably believe that if they were to make the disclosure to the employer, it is likely that evidence surrounding the relevant failure will be concealed or destroyed; or
  • have already made a disclosure of substantially the same information to their employer or a prescribed person.
• The fourth and final test is that, in all the circumstances of the case, it must be reasonable for the worker to make the external disclosure.

However, where an external disclosure relates to an “exceptionally serious” failure the conditions are slightly less stringent. The conditions are:

• the worker must reasonably believe that the information disclosed, and any allegation contained in it, is substantially true;
• the worker must not make the disclosure for personal gain;
• the relevant failure must be of an exceptionally serious nature (eg, rare cases of extreme public concern); and
• in all the circumstances, it is reasonable for the worker to make the external disclosure. 

Yes, anonymous whistleblowing reports are admissible, but the company is not legally required to investigate an anonymous report. This is because the WBP Act states that a whistleblowing report must contain information on the identity of the whistleblower, and the company may deem that an anonymous report does not represent a qualifying whistleblowing report. In any case, the WBP Act extends its protection to persons who submitted an anonymous report if the identity of that person becomes known.

The Whistleblower Protection Act does not state that the employer must set up reporting channels in such a way that anonymous reports are admissible (section 16 (1) HinSchG). Also, external reporting offices do not have to process anonymous reports (section 27 (1) HinSchG). According to the Whistleblower Protection Act, however, anonymous reports “shall” be processed by the internal and external reporting offices. Against this background, employers are entirely free to choose whether to provide systems that allow for the submission and processing of anonymous reports or not.

Yes. The Department for Business Innovation and Skills  guidance on whistleblowing recognises that it is good practice to have a facility for anonymous reporting. However, it recommends that workers should be made aware that if a disclosure is made anonymously it may be more difficult for the individual to qualify for protection as a whistleblower. There will be no documentary evidence linking the worker to the disclosure for an employment tribunal to consider.

No, the WBP Act expressly provides that the information on the irregularities (i.e., breaches/violations) contained in the whistleblowing report may also include reasonable doubt on actual or potential irregularities that occurred or are very likely to occur, or on attempts to cover-up such irregularities.

In principle, the whistleblowers do not have to be direct witnesses to a violation. However, they must have obtained information about violations in connection with or before their professional activities. Violation information is defined as a reasonable suspicion or knowledge of actual or potential breaches and attempts to conceal such breaches that have occurred or are very likely to occur (section 3 (3) HinSchG). However, only whistleblowers acting in good faith are protected from any discriminatory measures as a result of their report.

No. The worker must have a “reasonable belief” that the information disclosed tends to show one of the relevant types of wrongdoing.

The whistleblowing procedure must be regulated by a whistleblower policy adopted by the company. In practice, the policy should include provisions regulating eligible whistleblowers; methods of reporting; the content of the whistleblowing report; the procedure for submitting, following up on and investigating the whistleblowing report with all applicable deadlines; and the appointment of a WBP officer and a deputy.

• Eligible whistleblowers - please see answers to questions 12 and 13;
• Methods of reporting - the whistleblowing report may be submitted either in writing (including e-mail communication) or verbally (meaning via a telephone call or voice message, or in a physical meeting if so requested by the whistleblower);
• Content of the whistleblowing report - the whistleblowing report should contain information on the identity of the whistleblower, information on the reported body or person (ie, the body or person who committed irregularities), and information on the irregularities.
• Procedure for submitting, following up on and investigating the whistleblowing report – after receiving the report, the WBP officer or their deputy must:
  • acknowledge receipt of the report within seven days;
  • without delay undertake actions within the officer’s competence as required to protect the whistleblower;
  • undertake actions required to investigate the reported irregularities and provide feedback to the whistleblower generally within 30 days, but in no case later than 90 days from the date of acknowledgement of receipt of the report, or if no acknowledgement was sent to the whistleblower, 90 days from the end of the seven-day period after the report was made;
  • without delay, forward the report to competent authorities for further processing if the irregularities have not been resolved in cooperation with the company;
  • without delay, notify the whistleblower in writing of the outcome of the investigation;
  • notify in writing the authority competent for external reporting on received reports within 30 days of a decision on the report;
  • keep confidential the identity of the whistleblower and all information contained in the report as required by the law; and
  • provide clear and easily available information regarding the procedure for submitting a report to the competent authority for external reporting and, as appropriate, institutions, bodies, offices or agencies of the European Union competent to take further action following the content of the report;
• Appointment of a WBP officer and a deputy – the company must appoint a WBP officer and deputy at the request of a works council. If there is no works council, then a union trustee would make the request. If there is no works council or union trustee, then 20% of employees of the company would make the request. The appointed officer and deputy must provide written consent for the appointment. If any of the above does not request the appointment of an officer or deputy, the company may make the appointment at its discretion. If the WBP officer and deputy are appointed, and at any time the works council, union trustee or the abovementioned proportion of employees make a written request to the company proposing that any other persons be appointed as WBP  officer and deputy, the company must make the necessary replacements.

The whistleblower procedure requires – in its broad outlines – that the personal and material scope of the Whistleblower Protection Act is applicable. Assuming this, the whistleblower must have obtained information about violations in connection with his or her professional activities or in advance of professional activities. In a further step, the whistleblower must report or disclose these violations to the internal and external reporting bodies responsible. The Reporting Office will issue an acknowledgement of receipt to the person making the report within seven days. Within three months of the acknowledgement of receipt, feedback will be provided to the whistleblower on planned and already taken follow-up measures and their reasoning. This information will be documented in compliance with the principle of confidentiality. This documentation will be deleted two years after the conclusion of the proceedings.

Under the Employment Rights Act 1996, there is no requirement to have a whistleblowing procedure and, therefore, there are no prescribed terms and conditions.

No, there is no hierarchy between the internal and external reporting channels, meaning that a whistleblower is completely free to choose whether to make a report internally or externally. On the other hand, the whistleblower may only publicly disclose irregularities if:

• the whistleblower already submitted an external whistleblowing report (regardless of whether they first submitted an internal report), but no appropriate measures were undertaken in response to the report; or
• the whistleblower did not submit an external whistleblowing report but has reason to believe that:
  • the irregularity represents an immediate and obvious danger to the public interest, for example in case of a crisis situation or risk of irreparable damage; or
  • if submitting an external whistleblowing report, there is a risk of retaliation or the prospect of the issue being remedied is low due to the special circumstances of the case.

There is no legally binding hierarchy between internal and external reporting channels. Therefore, the whistleblower has, in principle, the right to choose whether to report the violations externally or internally. However, in cases where effective internal action can be taken against violations, whistleblowers are to give preference to reporting to an internal reporting office. If an internally reported violation is not remedied, the whistleblower making the report is free to contact an external reporting office (section 7 (1) HinSchG).

Yes. In the UK, in addition to the general conditions that amount to a “protected disclosure”, there is essentially a tiered system of disclosure depending on to whom the disclosure is made. The disclosure requirements range from limited requirements for an internal disclosure to an employer up to more stringent requirements for external disclosures to a third party outside of the employer’s organisation. Please see question 11 for further details.

Yes, under the WBP Act it is the duty of WBP officer and deputy to:

• forward the report to competent authorities for further processing if the irregularity has not been resolved in cooperation with the company; and
• notify in writing the authority competent for external reporting on the report and the outcome of the actions undertaken within 30 days after a decision on the report is made.

Once the reporting process at the internal reporting office is completed, the internal reporting office can take various follow-up actions. In addition to internal investigations, the process can also be handed over to a competent authority for further investigation (section 18 No. 4 HinSchG).

A protected disclosure may trigger a requirement to inform an external authority. This will ultimately depend on the nature of the company, the protected disclosure and the relevant failure disclosed. For example, if the disclosure relates to a regulatory breach, a regulated employer may need to inform the Financial Conduct Authority, or a disclosure that indicates money laundering would need to be disclosed to the National Crime Agency.

No, whistleblowers cannot be sanctioned for submitting a whistleblowing report or publicly disclosing irregularities (regardless of whether or not the facts are confirmed or such facts constitute an infringement), unless it can be proven that the whistleblower did not have a legitimate reason to believe that the information on irregularities was true at the time of making the report or disclosure, or did not have a legitimate reason to believe that the information falls within the scope of the WBP Act.

As a principle, the disclosure of inaccurate information about violations is prohibited under the Whistleblower Protection Act (section 32 (2) HinSchG). A whistleblower may, however, not be sanctioned if the facts, after being verified, are merely not confirmed or do not constitute a violation in the final analysis. If the information disclosed was incorrect, the following legal consequences will apply:

On the one hand, the whistleblower must compensate for any damage resulting from intentional or grossly negligent reporting or disclosure of incorrect information (section 38 HinSchG). The whistleblower's liability for damages is based on the fact that a false report or disclosure has far-reaching consequences for the person affected or accused. The effects may no longer be completely reversible. According to the Whistleblower Protection Act, claims for damages resulting from merely negligent incorrect reporting should not arise. Besides, only whistleblowers acting in good faith are protected from further repercussions.

On the other hand, the whistleblower acts improperly if he intentionally discloses incorrect information in violation of section 32 (2) of the Whistleblower Protection Act (section 40 (1) HinSchG). This administrative offence may be punished with a fine of up to 20,000 EUR (section 40 (5) HinSchG).

No. There are no sanctions for false reporting under the Employment Rights Act 1996.  

While the worker must have a “reasonable belief” that the information disclosed tends to show one of the relevant types of wrongdoing, there is no requirement for the worker to prove that the allegations or facts are, in fact, true. Certain disclosures carry a higher test and require the worker to show that they believed the facts were “substantially true”.  Please see the stricter restrictions outlined in question 11.

To qualify as a protected disclosure the worker must reasonably believe that the disclosure is made in the public interest. There is no longer a legal requirement that the disclosure is made in “good faith”. However, tribunals do have a statutory power to reduce compensation for unfair dismissal by up to 25 per cent where the tribunal believes that the disclosure was not made in good faith. If a disclosure is deliberately falsely made, the whistleblower may be subject to disciplinary proceedings.

If the company undertakes actions that constitute an obstruction of the whistleblower (for example, preventing or attempting to prevent the submission of a report, undertaking malicious processes against the whistleblower or retaliation against the whistleblower), the company may be fined up to about 6,700 EUR and the individual responsible with the company may be fined up to about 4,000 EUR.

Furthermore, any decision or other document provided by the company, or any legal transaction, whereby the  company retaliates against the whistleblower or person related to or connected with the whistleblower will not have any legal effect.

Retaliation against the whistleblower is prohibited under the Whistleblower Protection Act. This also applies to threats and attempts at retaliation (section 36 (1) HinSchG). In addition, it is prohibited to interfere or attempt to interfere with reports or communications between a whistleblower and the reporting office (section 7 (2) HinSchG).

If the whistleblower was nevertheless obstructed, the following legal consequences will apply: if a retaliation occurs, the person causing the violation must compensate the whistleblower for the resulting damage. However, this does not entitle the whistleblower to an employment relationship, a vocational training relationship, any other contractual relationship, or career advancement.

In addition, taking an illegal reprisal or interfering with the communications between the whistleblower and the reporting office constitutes an administrative offence, which can be punished with a fine of up to 50,000 EUR (section 40 (2) No. 3, (5) HinSchG).

The Employment Rights Act 1996 does not provide for specific sanctions for obstructing a whistleblower. However, in the UK, workers are protected against suffering a detriment on the grounds of making a protected disclosure and the dismissal of an employee will be automatically unfair if the reason or principal reason for the dismissal is that they have made a protected disclosure. For further details of the scope of protection please see question 23.

To receive protection as granted under the WBP Act, the whistleblower must either:

• submit an internal whistleblowing report as per the whistleblowing procedure established by  company and the WBP Act;
• submit an external whistleblowing report to the competent authority for external reporting (which in Croatia is the Croatian Ombudsman) as per the regulations adopted by that authority and the WBP Act; or
• publicly disclose information on irregularities as per the WBP Act (please see question 18).

To obtain protection, the whistleblower generally has to contact the responsible internal or external reporting offices. Disclosure of information about violations directly to the public is subject to strict conditions. This is only permissible, for example, if there is a risk of irreversible damage or in cases where the external reporting agency has not taken the required measures (section 32 (1) HinSchG).

The whistleblower providing the information must further act in good faith (ie, must have reasonable cause to believe, at the time of the report or disclosure that the information disclosed is true, and the information relates to violations that fall within the material scope of the Whistleblower Protection Act (section 33 (1) No. 2 and 3 HinSchG).

To gain statutory protection, a whistleblower must follow the correct procedure for disclosing the qualifying disclosure as outlined in question 14.

Regarding the personal scope of protection, the  company is prohibited from retaliation, attempted retaliation or threatened retaliation against the whistleblower; any person assisting the whistleblower; persons connected with the whistleblower (for example, relatives or colleagues of the whistleblower); legal entities that the whistleblower owns, works for, or is otherwise connected with within the work-related environment; and the WBP officer and their deputy.

Concerning the material scope of protection, the following is a non-exhaustive list of what is considered retaliation under the WBP Act:

• suspension, termination, revocation or equivalent action;
• demotion or denial of promotion;
• transfer of duties, change of work location, salary decrease, change of working hours;
• denial of professional training;
• negative work performance ratings or negative employment recommendations;
• imposition or adoption of a disciplinary measure, reprimand, or other sanction (including financial sanctions);
• coercion, intimidation, harassment, or isolation;
• discrimination, being put at a disadvantage or unfair treatment;
• refusal to conclude an employment contract for an indefinite duration (if the legal requirements of this were met and the employee had a reasonable expectation that such a contract would be offered to him or her);
• refusal to conclude a consecutive fixed-term employment contract or the termination thereof;
• causing damage (including damage to reputation), especially via social media, or causing financial loss (including loss of business or loss of income);
• blacklisting the person within a sector or industry;
• premature termination of any contract for procurement of goods or services, or the cancellation thereof;
• cancellation of a licence or permit; and
• referral to a psychiatric or medical assessment.

Should a person entitled to protection under the WBP Act suffer retaliation (including if the retaliation is only attempted or threatened), they may initiate court proceedings asking the court to: establish that the person suffered retaliation; prohibit further retaliation and undo the consequences of retaliation; award damages; or order the publication of the judgment confirming that the protected person's rights have been violated. In addition, protected persons may also ask the court to impose interim measures either before, during or after court proceedings (until enforcement is carried out).

The most fundamental part of the protection is the prohibition of retaliation against the whistleblower. Therefore, the reporting or disclosing of information may not result in unjustified disadvantages such as disciplinary measures, dismissal or other discrimination against the person providing the information. In Addition, the Whistleblower Protection Act still contains a reversal of the burden of proof if the whistleblower suffers a disadvantage in connection with their professional activities. However, it is presumed that the disadvantage is a reprisal for the tip-off only if the whistleblower also asserts this themself. It should be noted, however, that the reversal of the burden of proof in favour of the whistleblower will only apply in labour court disputes and not in fining proceedings.

Furthermore, the Whistleblower Protection Act contains an exclusion of responsibility. Thus, a whistleblower cannot be made legally responsible for obtaining or accessing information that he or she has reported or disclosed, unless the obtaining or accessing of the information and the procurement or access as such constitutes an independent criminal offence (section 35 (1) HinSchG). In addition, a whistleblower does not violate any disclosure restrictions and may not be held legally responsible for the disclosure of information made in a report or disclosure if he or she had reasonable cause to believe that the disclosure of the information was necessary to detect a violation.

There are two main types of protection for whistleblowers under the Employment Rights Act 1996: protection against being subjected to a detriment and against unfair dismissal. The type of protection an individual whistleblower has depends on their legal status. Employees have more protection than workers.

Detriment: All workers have a right not to be subjected to any detriment on the ground they have made a protected disclosure. The definition of worker is wide (as outlined in question 13).

A worker must have:

• made a protected disclosure;
• suffered an identifiable detriment; and
• been subjected to the detriment by an act or deliberate omission of the employer, another worker or agent and this must have been done on the ground that the worker had made a protected disclosure.

There is no definition of “detriment” under the Employment Rights Act 1996. Detriment is interpreted widely. Examples include, but are not limited to:

• suspending a worker;
• disciplinary action;
• changes to the worker’s role or workplace;
• exposing the worker as a whistleblower; and
• giving a bad reference.

Workers have three months from the date of the act or omission to bring a claim. Liability for detriment claims is uncapped.  In successful claims, a worker will be awarded a compensatory award to cover financial losses together with an injury to feelings award.

Automatic unfair dismissal: An employee will be automatically unfairly dismissed if the reason or principal reason for the dismissal is the fact that the employee made a protected disclosure. Workers do not have unfair dismissal protection under UK law.

An employee will be deemed to have been dismissed where:

• the contract of employment was terminated by the employer (whether with or without notice);
• the employee was employed under a fixed-term contract and the contract expired without being renewed on the same terms; or
• the employee has been constructively dismissed.

The selection of an employee for redundancy is automatically unfair if the reason or principal reason for the section is that the worker made a protected disclosure.

Employees have three months from the date of termination to bring a claim. Employees do not need a minimum length of service to have protection. Compensation for automatic unfair dismissal is uncapped.

In addition to protection of identity and confidentiality, judicial support, and the right to compensation, whistleblowers have the following support measures: free primary legal aid; the possibility of being granted secondary legal aid; an exemption from the payment of court fees; and emotional support (which will be further defined in a supporting regulation yet to be adopted by the Ministry).

At first, the person providing the information may not be subject to legal liability for obtaining or accessing information that he or she has reported or disclosed. This does not apply if the procurement or access as such constitutes an independent criminal offence (section 35 (1) HinSchG).

In addition, whistleblowers are protected by a comprehensive prohibition of retaliation. Therefore, any adverse consequences caused by disclosure are prohibited. These include, for example, dismissal, disciplinary measures or salary reductions (section 36 (1) HinSchG). Measures that violate the prohibition are void under section 134 of the Civil Code. The prohibition of retaliation is rounded off by a reversal of the burden of proof. According to this, it is presumed that a disadvantage that occurs after a disclosure is retaliation. As a consequence, the person who has disadvantaged the whistleblower has to prove that it is factually justified and was not based on the report or the disclosure if the whistleblower also asserts the disadvantage himself (section 36 (2) HinSchG).

In addition, the whistleblower is entitled to damages in the event of a violation (section 37(1) HinSchG).

There are no specific “support measures” outside of the legal protection under UK whistleblowing laws (outlined in question 23).  However, the UK whistleblowing charity Protect operates a free, confidential whistleblowing advice line.

If a whistleblower abusively reports a violation, this may initially give rise to criminal liability. Possible criminal offences are pretending to have committed a criminal offence (section 145d of the Criminal Code), false suspicion (section 164 of the Criminal Code) or offences of honour (section 185 et seq of the Criminal Code).

The whistleblower providing the abusive information also must compensate for any damage resulting from intentional or grossly negligent reporting or disclosure of incorrect information (section 38 HinSchG). Furthermore, there may be competing claims for damages, for example under section 823 (2) of the Civil Code in conjunction with a protective law.

Moreover, the whistleblower commits an administrative offence if he or she intentionally discloses inaccurate information. This may be punished with a fine of up to 20,000 EUR (section 40 (1), (6) HinSchG).

In principle, the whistleblower is free to decide whether he or she reports a violation through the internal or the external reporting channel (section 7 (1) HinSchG). However, if a violation is disclosed to the public directly (ie, without first using internal or external reporting channels and without there being an exceptional circumstance for this), the whistleblower is generally not subject to the protection of sections 35 to 37 of the Whistleblower Protection Act. Only in narrow exceptions is the whistleblower still protected, for example, if there is a danger of irreversible damage or comparable circumstances may represent an immediate or obvious threat to the public interest.

The Employment Rights Act 1996 does not provide for specific sanctions for abusive reporting. Please see question 20 for further details.  

The main consequence of non-compliance with the statutory whistleblowing procedure will be that the worker will not be deemed to have made a protected disclosure. As a result, they will not be in a position to bring a claim under the relevant whistleblowing protections.