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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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

24. What are the support measures attached to the status of whistleblower?

24. What are the support measures attached to the status of whistleblower?

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Australia

  • at Lander & Rogers

In addition to the protections afforded to whistleblowers as summarised above (namely, the protection of information or confidentiality), the status of whistleblower can be supported by whistleblower policies. Relevantly, from 1 January 2020, the Corporations Act made it a requirement for all public companies, large proprietary companies and proprietary companies that are trustees of registrable superannuation entities to have a whistleblowing policy.

ASIC's Regulatory Guide 270 provides a handy overview of what should be included in a whistleblower policy. In this regard, the Regulatory Guide notes:

  • in RG 270.40 that the purpose of a whistleblower policy is "to ensure individuals who disclose wrongdoing can do so safely, securely and with confidence that they will be protected and supported"; and
  • in RG.270.11 that, under section 1317AI(5)(c) of the Corporations Act, an entity's whistleblower policy must have information that details how the entity will support whistleblowers and protect them from detriment.  
Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

Competent authorities or the federal Institute for the protection and promotion of Human Rights can award support measures to reports, like:

  • comprehensive and independent information and advice on available remedies and procedures;
  • technical advice before any authority associated with the report;
  • legal assistance;
  • support measures;
  • financial assistance in legal proceedings; and
  • assistance with any administrative or judicial authority concerned with protection against retaliation.
Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

There are no statutory support measures attached to the status of whistleblower.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

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).

Last updated on 29/07/2022

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Denmark

  • at IUNO
  • at IUNO

Support measures include:

  • a prohibition to derogate from the rules to the detriment of the whistleblower or affected persons, as defined under the Whistleblowing Act;
  • comprehensive, independent information and advice that is made easily accessible and is free of charge to whistleblowers to assert the necessary overview of the rights that apply when covered by the Whistleblowing Act; and
  • an additional layer of protection for facilitators, third parties who are connected to the case and legal entities owned by, or connected to, the whistleblower.
Last updated on 30/11/2022

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France

  • at Proskauer
  • at Proskauer

Many support measures are set up by the law:

  • Courts can allocate provisions for legal expenses to whistleblowers.
  • Moreover, courts can grant temporary financial assistance, at the expense of the opposing party, if the whistleblower's financial situation has seriously deteriorated as a result of the report.
  • French law can attempt to ensure psychological support for whistleblowers.
  • Finally, a labour court could order the company to contribute to the whistleblower’s personal training account (up to 8,000 EUR for low-skilled employees and 5,000 EUR for other employees).
Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

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-E).

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-E). 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 (section 36 (2) HinSchG-E).

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

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

The Whistle Blower Protection Act and Companies Act do not prescribe any support measures to the status of whistleblowers.

Last updated on 29/07/2022

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Japan

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

The business operator is required to take measures to prevent out-of-scope sharing such as:

  • limiting the number of persons who can view and share records and materials related to whistleblowing;
  • clearly confirming the scope of such persons in the internal rules of the business operator; and
  • clarifying the way records related to whistleblowing are kept and accessed in the internal rules of the business operator.

In addition, the business operator is required to take measures to prevent “searching[1]” except in unavoidable circumstances.  An example of the measures to prevent searching is stipulating in the internal rules that searching is not allowed and is subject to disciplinary action or other appropriate measures, and educating and publicising such information[2].

In case of out-of-scope sharing or searching, disciplinary action or other appropriate measures will be taken against workers and officers who do it, by taking into account various circumstances such as the context, the extent of the damage and other circumstances[3].


[1]   “Searching” means the acts of attempting to identify whistleblowers (Consumer Affairs Agency Guidelines, supra note 8, Section 2, at p.2.)

[2]   Consumer Affairs Agency Guidelines Explanation, supra note 3, Section 3 II (2)(ii)(c), at p.15.

[3]   Consumer Affairs Agency Guidelines, supra note 10, Section 4 (2)(ii)(c), at p.3.

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

The following support measures are provided:

  • legal aid provided by the state;
  • exemption from the payment of court costs in civil proceedings and the payment of a state fee in administrative proceedings before a court;
  • interim relief in civil proceedings and administrative proceedings before the courts;
  • appropriate compensation for damages for loss or personal injury, including moral injury;
  • advice on the protection of their rights; and
  • exemption from the obligation to comply with the out-of-court procedure in administrative proceedings.
Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

All measures are listed in question 23. Support could also be recognised as the possibility to receive monetary compensation (ie, remuneration for valuable information and compensation for the negative effects or possible consequences of notification) However, only one of these financial support measures could be applied. In addition, a whistleblower may also be granted, at his or her request, secondary state-guaranteed legal aid under the procedure laid down by law.

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro

The Bill does not specify this point.

Last updated on 29/07/2022

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Malta

Malta

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

In addition to the protection mentioned in question 23, the Act provides that the following support measures are available to the whistleblower:

  • comprehensive and independent information and advice, easily accessible to the public and free of charge, on the procedures and remedies available, on protection against discrimination, and on the rights of the accused;
  • effective assistance from competent authorities involved in their protection; and
  • legal aid in criminal and cross-border civil proceedings under Directive (EU) 2016/1919 and Directive 2008/52/EC.
Last updated on 16/11/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Apart from the protection guaranteed if the due process of law is followed, there are benefits available to whistleblowers.

  • Whistleblowers who have been subjected to detrimental treatment may present a complaint to the regulatory body regulating the business of his or her employer.
  • Notwithstanding the above, nothing precludes a whistleblower from bringing legal action in a competent court, such as National Industrial Court for employees.  
  • Whistleblowers may be entitled to monetary compensation depending on the whistleblowing policy. For instance, Under the Federal Ministry of Finance whistleblowing programme, a whistleblower responsible for providing the federal government with information that directly leads to the voluntary return of stolen or concealed public funds or assets may be entitled to between 2.5% to 5% of the amount recovered.
Last updated on 29/07/2022

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Poland

  • at Baran Książek Bigaj
  • at Baran Książek Bigaj

If a whistleblower suffers from retaliatory action, they have the right to compensation in full.

A whistleblower cannot be liable for any civil or criminal fines or penalties, including damages, if they had reasonable grounds to believe that the reporting or public disclosure was necessary to disclose a violation of the law under the Bill. In the event of legal proceedings relating to the liability referred to above, the whistleblower may request the discontinuation of such a proceeding.

It is impossible to waive any of the rights set out above or accept liability for damages caused by the reporting or public disclosure. This does not apply to accepting liability for damages caused by knowingly reporting or disclosing false information to the public.

The provisions of employment contracts, other documents on which the employment relationship are created, or that shape the rights and obligations of the parties to the employment relationship, that directly or indirectly exclude or limit the right to make a notification or public disclosure or provide for the application of retaliatory measures, are null and void.

Last updated on 17/11/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Acts of retaliation against whistleblowers are prohibited; they are entitled to legal protection and can benefit from witness protection measures in criminal proceedings.

Last updated on 29/07/2022

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Romania

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

The law provides for extensive support measures from information and advice received from the Romanian National Integrity Agency to legal aid provided by the local Attorneys Bar, both free of charge. Civil society criticised such shallow support for lacking accompanying norms for the benefit of whistleblowers. Although there were many voices from practice asking for financial incentives for whistleblowers, no such measures have been approved. Also, no rule regarding psychological support, mentioned in article 20 paragraph 2 of the Directive, has been transposed.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

Whistleblowers will be granted certain support measures, according to section 37 of the Draft. For instance, first, they will be informed and advised for free on procedures and resources put in place to ensure their protection against retaliation. Second, they will benefit from assistance regarding protection against retaliation. Third, they will enjoy monetary and psychological assistance in exceptional cases if the Independent Authority for the Protection of Whistleblowers deems it adequate.

All of them, irrespective of the free legal aid foreseen under Law 1/1996.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

The competent authorities are responsible for providing easily accessible information on the advice and support offered by the authority and other parties.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

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.

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

Several governmental entities maintain websites containing various resources for whistleblowers, including information about the relevant legal protections, the procedures for filing complaints, and answers to frequently asked questions. These include the SEC’s Office of the Whistleblower, OSHA, the ARB, and the IRS.

Last updated on 29/07/2022