Guide to Whistleblowing

Contributing Editors

In this new age of accountability, organisations around the globe are having to navigate a patchwork of new laws designed to protect those who expose corporate misconduct. IEL’s Guide to Whistleblowing examines what constitutes a protective disclosure, the scope of regulations across 21 countries, and the steps businesses must take to ensure compliance with them.

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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05. Are the employee representative bodies involved in the implementation of this system? 

05. Are the employee representative bodies involved in the implementation of this system? 

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Australia

  • at Lander & Rogers

Strictly speaking, no. ASIC Regulatory Guide 270 does not refer to employee representative bodies needing to be involved in the implementation of whistleblower policies.

Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

There has to be a consultation of the social partners for the establishment of an internal reporting procedure. This means that the employer will have to consult the works council. If there is no works council (less than 100 employees), they will consult the trade union delegation. If there is no trade union delegation either, the health and safety committee can be consulted. This right to consultation does not mean that these representative bodies have a veto right or a decision power, but they have the right to give their opinion on the proposed system. Ideally, the employer will take their remarks into consideration.

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

No, employee representative bodies are not involved in the implementation of the whistleblowing procedure.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

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.
Last updated on 29/07/2022

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Denmark

  • at IUNO
  • at IUNO

Not as a main rule. However, the employee representatives or works councils may argue that the implementation of the system falls within the scope of obligations in the Danish Information and Consultation of Employees Act.

Last updated on 30/11/2022

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France

  • at Proskauer
  • at Proskauer

A company’s work council must be informed and consulted before the implementation of a whistleblowing procedure.

Indeed, work councils are informed and consulted “on all questions which are linked to the organisation, management and general running of the company and in particular on conditions of employment, professional training, working conditions and on the introduction of new technologies or any significant change in health and safety conditions or working conditions” (article L. 2312-8 of the Labor Code).

Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

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 draft bill of 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.   

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

No, employee representative bodies are not involved in the vigil mechanism. The whistleblowing mechanism will be overseen by a Covered Company through its Audit Committee or Board of Directors, as may be relevant.

Last updated on 29/07/2022

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Japan

  • at City-Yuwa
  • at City-Yuwa
  • at City-Yuwa

The Act does not require the involvement of employee representative bodies.

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

The Whistleblowing Act does not require the involvement of employee representative bodies in implementing the whistleblowing procedure. The involvement of employee representative bodies in the whistleblowing procedures is more consultative.

The Whistleblowing Act provides that trade unions and their associations, as employee representatives bodies: can provide support, including counselling, to whistleblowers to promote whistleblowing and whistleblower protection; provide support, including counselling, to its members concerning whistleblowing; and can apply to a public authority (body) or a court on behalf of a whistleblower who is a member of the trade union.

The Labour Act provides that employee representative bodies have the right to receive information from the employer and consult with the employer concerning the implementation of measures that affect or may affect the employment relationship. Therefore, it is advisable to inform or consult with employee representative bodies (if any) about the implementation of whistleblowing procedures to avoid the risk of administrative liability.

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

There is no direct obligation to include employee representatives in the implementation of this system. However, since the employer must inform or consult with the works councils regarding the adoption of certain internal laws, including when they may be relevant to the social and economic situation of employees, the need to inform and consult with the works council can be inferred.

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro

Yes.

When establishing the internal reporting procedure, a company's staff delegation must be involved in different ways, depending on the size of the company:

  • In companies with less than 150 employees, the information and consultation procedure with the staff delegation will commence. The staff delegation will have to be informed about the intention to set up or modify the whistleblowing channel and will be entitled to give opinions and propose changes.
  • In companies with 150 employees and more, the decision to set up or modify the whistleblowing channel will have to be made jointly by the employer and the staff delegation (co-decision).

Under the current regime, whistleblowing channels are mostly implemented unilaterally by employers in the financial and insurance sectors, but the previous consultation process with the staff delegation or, in larger companies, co-decision, should be respected.

Last updated on 29/07/2022

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Malta

Malta

  • at Camilleri Preziosi
  • at Camilleri Preziosi
  • at Camilleri Preziosi

There is no legal requirement (whether in the Act or local employment legislation) for an employer to inform or consult with employee representative bodies on its internal reporting channels and procedures.

Aside from the above, the Act recognises the right of employees to consult with their representatives or trade unions (without suffering any unjustified detrimental action for doing so), the autonomy of those social partners, and their right to conclude collective agreements, which remain unaffected by this Act.

Last updated on 16/11/2022

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Nigeria

Nigeria

  • at Bloomfield LP

The Nigerian law is silent on the employee representative bodies’ involvement in the implementation of whistleblowing policies. However, the companies with whistleblowing policies do not involve employee representative bodies in the implementation of their system.

Last updated on 29/07/2022

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Poland

  • at Baran Książek Bigaj
  • at Baran Książek Bigaj

The legal entity will determine the internal reporting regulations after consultation with:

  • a company trade union organisation or,
  • employee representatives selected under the procedure adopted by the employer – if the legal entity does not have a company trade union organisation.

The consultations will last no less than seven days and no longer than 14 days from the date of submission by the legal entity of the draft internal reporting procedure.

Last updated on 17/11/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, but the provisions of Law No. 93/2021 do not affect the right of employees to consult their representatives or trade unions and the protective rules associated with the exercise of this right, and the right of trade unions, employers' associations, and employers to conclude a collective bargaining agreement.

Last updated on 29/07/2022

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Romania

  • at STALFORT Legal. Tax. Audit.
  • at STALFORT Legal. Tax. Audit.

The previous proposal of the law implementing the EU Whistleblowing Directive provided for employee representative bodies (ie, generally speaking trade unions, if they exist, or employee representatives) to be consulted when establishing the reporting procedures. The approved version as of 29 June 2022 does not provide for such consultancy procedure anymore; however, it remains recommendable.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

Yes. Section 5 of the Draft states that the management body or governing body of each entity or body that must establish “internal information systems” will be responsible for their implementation, after consultation with the employees´ legal representatives.

Moreover, collective-bargaining agreements may also establish certain obligations in this regard.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

There is no obligation to include employee representative bodies in the implementation of whistleblowing procedures.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

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.

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

Employers with unionised employees may have a duty to bargain with the union if the whistleblower program can be deemed to affect the terms and conditions of employment of the union members.

Last updated on 29/07/2022

13. Who can be a whistleblower?

13. Who can be a whistleblower?

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Australia

  • at Lander & Rogers

Whistleblowers are often, but not always, employees of the organisations where the misconduct has occurred or is occurring.

Previous examples of internal whistleblowers include:

  • the Commonwealth Bank Financial Planner Scandal whistleblower; and
  • the CommInsure Life Insurance Scandal whistleblower.

Previous examples of external whistleblowers who were not employees include:

  • a Ponzi Scheme whistleblower who was an external financial analyst; and
  • the Trio Capital Superannuation Fraud whistleblower who was an external financial analyst.

While the commonly accepted definition of “whistleblowing” refers to employees of an organisation (both former and current), an eligible whistleblower is not limited to an employee of an organisation. This is highlighted in section 1317AAA of the Corporations Act, particularly subsections (c), (d), (g) and (h). This section of the Corporations Act is discussed further below.

Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

The personal scope is very broad: it can be employees (workers); independent workers; shareholders; members of administrative, management or supervisory bodies; volunteers and interns (paid or unpaid); any person working under the supervision and direction of contractors, subcontractors and suppliers; ex-employees; or employment candidates. However, companies do not have to make their internal reporting channels accessible to persons other than their employees (the other persons can use the external system).

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

A whistleblower can be any person defined as such in the company’s Code of Ethics and Integrity, Whistleblower Procedure or equivalent document: employees, former employees, applicants, contractors, suppliers, clients or any persons that have information about inappropriate conduct.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

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.
Last updated on 29/07/2022

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Denmark

  • at IUNO
  • at IUNO

See question 12.

Last updated on 30/11/2022

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France

  • at Proskauer
  • at Proskauer

To benefit from whistleblower protection, the individual can be:

  • an employee;
  • a former employee when the information was obtained in the course of his or her employment;
  • applicants for a job;
  • shareholders or partners of the entity concerned;
  • external and occasional employees of the entity; and
  • contractors and subcontractors.
Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

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.

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

There are no limitations or qualifications on who can be a whistleblower. Any person with knowledge of a breach or wrongdoing may report it and qualify as a whistleblower.

Last updated on 29/07/2022

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Japan

  • at City-Yuwa
  • at City-Yuwa
  • at City-Yuwa

A worker[1], dispatched worker[2], a worker of a business partner (eg, a counterparty under a service agreement), and officers[3] of juridical persons and a worker, a dispatched worker and a worker of business partners who quit within 1 year after resignation can be a whistleblower (article 2, paragraph 1 of the Act).


[1]   A worker means a worker as provided for in Article 9 of the Labor Standards Act (Act No. 49 of 1947).

[2]   A dispatched worker means a worker in Article 2, Item (ii) of the Act on Securing the Proper Operation of Worker Dispatch Business and Improvement of Working Conditions for Dispatched Workers (Act No. 88 of 1985).

[3] “officer” means an executive officer, operating officer, accounting advisor, auditor, director, inspector, liquidator, or any person other than those persons who engage in the management of a corporation based on the provisions of laws and regulation (excluding accounting auditor).

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

Only natural persons, if they comply with the definition of whistleblower as provided in the Whistleblowing Act (please see question 12).

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

Please see question 12.

It could be added that “a person who provides information on a breach” is a natural person who provides information about a breach in a company, which he or she learned about from his or her service, employment or contractual (consulting, contracting, subcontracting, internship, traineeship, voluntary activity, etc) relationship with that or during recruitment or other pre-contractual relationship. It may also include a self-employed person who reports the breach, shareholders or members of the administrative, management or supervisory body of the company (including non-executive members, as well as volunteers and paid or unpaid trainees), or any natural person employed by contractors, subcontractors or suppliers.

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro
  • Workers:
    • private-sector employees;
    • public-sector employees and civil servants,
    • trainees and volunteers;
    • former employees; and
    • persons involved in recruitment processes.
  • Business partners:
    • self-employed workers,
    • employees of subcontractors and suppliers;
    • former co-contractors; and
    • persons in pre-contractual negotiations;
  • Members of corporate governance:
    • shareholders;
    • members of the administrative body; and
    • members of the supervisory body.
Last updated on 29/07/2022

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Malta

Malta

  • at Camilleri Preziosi
  • at Camilleri Preziosi
  • at Camilleri Preziosi

A whistleblower is an employee, who is (a) any person who has entered into or works under a contract of service with an employer, and includes a contractor or sub-contractor who performs work or supplies a service or undertakes to perform work or supply services, and (b) any person who has undertaken to execute any work or service for, and under the immediate direction and control of another person, including a remote worker, but excluding work or services performed by professionals bound by professional secrecy. It also extends to, inter alia:

  • former workers;
  • seconded workers;
  • candidates for employment;
  • shareholders and persons belonging to the administrative, management or supervisory body of the company; and
  • trainees.
Last updated on 16/11/2022

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Nigeria

Nigeria

  • at Bloomfield LP

A whistleblower can either be an employee or a stakeholder of a company.

Last updated on 29/07/2022

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Poland

  • at Baran Książek Bigaj
  • at Baran Książek Bigaj

According to the Bill, a whistleblower can be an individual who reports or publicly discloses information about a violation of the law obtained in a work-related context, including:

  • an employee and temporary employee;
  • a person applying for employment who obtained information about a violation of the law in the process of recruitment or negotiations preceding the conclusion of a contract;
  • a person providing work on a basis other than an employment relationship, including a civil law contract;
  • an entrepreneur;
  • a shareholder or partner;
  • a member of a body of a legal person;
  • a person providing work under the supervision and management of the contractor, subcontractor, or supplier, including based on a civil law contract;
  • a trainee;
  • a volunteer;
  • an intern; or
  • police officers and agencies associated with internal security.
Last updated on 17/11/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The following may be considered whistleblowers: employees in the private, social or public sector; service providers, contractors, subcontractors and suppliers, as well as any persons acting under their supervision and direction; and shareholders and persons belonging to administrative or management bodies, or supervisory or controlling bodies of legal persons, including non-executive members and volunteers and interns, remunerated or unremunerated.

Last updated on 29/07/2022

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Romania

  • at STALFORT Legal. Tax. Audit.
  • at STALFORT Legal. Tax. Audit.

The term includes:

  • workers;
  • self-employed persons within the meaning of article 49 TFEU;
  • shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees; and
  • any persons working under the supervision and direction of contractors, subcontractors and suppliers.

Moreover, former employees or persons who have acquired information during the recruitment process or other pre-contractual negotiations may be whistleblowers.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

The definition given by the Draft is very similar to the one in section 4 of the Directive, namely:

  • civil servants and workers;
  • self-employed;
  • shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members; and
  • any persons working under the supervision and direction of contractors, subcontractors and suppliers.

The Law will also apply to persons when they report or publicly disclose information on breaches obtained in a work-based relationship that has since ended, volunteers, trainees (regardless of whether they are paid or not) and persons whose employment relationship is yet to begin in cases where information on breaches has been obtained during the recruitment process or other pre-contractual negotiations.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

Please see question 12.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

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).

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

SEC Rule 21F-2 provides: “A whistleblower must be an individual. A company or other entity is not eligible to be a whistleblower.”

Although SOX generally applies only to publicly traded companies, the Supreme Court held in Lawson v FMR LLC (2014) that SOX’s whistleblower protections extend to employees of a publicly traded company’s contractors and subcontractors.

Although typically applied in the employer-employee context, the courts have held that the SOX whistleblower protections also extend to shareholders who provide information to the SEC.

Last updated on 29/07/2022