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 18 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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19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

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Australia

  • at Lander & Rogers

Whistleblower policy provisions will affect how a company can investigate the concern. The company's whistleblower policy must include information about how it will investigate concerns.

However, generally speaking, a company or organisation may report information to external authorities, such as ASIC, APRA, the Australian Federal Police or to a lawyer to seek advice about whistleblower protections.

Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

If the investigation of a report leads to the uncovering of severe legal breaches or crimes, there could be a duty for the employer or company to inform the authorities, but this will depend on each case.

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

No, there is no obligation for the employer to inform external authorities about the reports.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

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.
Last updated on 29/07/2022

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France

  • at Proskauer
  • at Proskauer

French law does not require an employer to inform external authorities about the reports.

However, this obligation does exist in certain situations. For example:

  • in the public sector, a constituted authority, public official or civil servant who, in the performance of his or her duties, becomes aware of a crime or misdemeanour must report it without delay to the General Prosecutor and must provide all relevant information, minutes and documents relating to the offence (article 40, paragraph 2 of the Criminal Procedure Code); and
  • regarding money laundering, insurers, mutual health insurance companies or credit institutions are required under certain conditions to report to the Tracfin Agency the amounts entered in their books or transactions involving money that they know, suspect or have good reason to suspect come from an offence or are linked with terrorist financing (article L. 561-15 of the Monetary and Financial Code).

In any case, it is highly recommended for the employer, when appropriate, to inform competent authorities if they about punishable facts through the whistleblowing channel. Indeed, silence from the employer would increase the risk of collusion or damages to the image and reputation of the Company.

Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

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-E).

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

There is no blanket requirement for an employer to inform external authorities upon receipt of disclosure from a whistleblower. However, depending on the nature of the disclosure, its gravity and impact, employers may be required to report the same to certain authorities, including but not limited to the Securities Exchange Board of India or relevant stock exchanges (in the case of listed companies) or even the Serious Fraud Investigation Office.

Last updated on 29/07/2022

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Japan

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

If necessary, the business operator must report to the relevant administrative agencies when its investigation reveals that there is a violation of laws and regulations but there is no specific provision prescribing the cases in which reports should be made to the relevant administrative agencies[1].


[1]   Id, Section 3 II(1)(iii)(c), at p.11.

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

No. The only exception is if during the investigation of a whistleblower’s report it was discovered that a crime had been committed, then the company must inform the respective state authorities about this fact.

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

Yes, if the institution that received the information on the breach is not competent to assess this information and if the person who provided the information through the internal channel wishes to be recognised as a whistleblower.

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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Nigeria

Nigeria

  • at Bloomfield LP

Whether an employer should inform external authorities about whistleblowing depends on the nature of the illegality or unethical conduct disclosed. Where the disclosure is not a crime, the employer need not disclose it to external authorities. However, where whistleblowing is about the commission of a crime, the employer is required to disclose the same to external authorities such as law enforcement agencies.

Last updated on 29/07/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

External complaints will be submitted to those authorities that, under their duties and powers, should know the matter covered by the complaint, including:

  • the Public Prosecutor’s office (Ministério Público);
  • the criminal police bodies;
  • the Bank of Portugal;
  • independent administrative authorities;
  • public institutes;
  • the Inspectorates-General, similar entities and other central services of the direct administration of the state with administrative autonomy;
  • local authorities; and
  • public associations.
Last updated on 29/07/2022

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Romania

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

As a general rule, the person or department designated to check reports is bound to keep information confidential regarding the whistleblower and the reports. However, exceptions apply when the law provides an obligation to inform public authorities (ie, in the context of investigations by national authorities or judicial proceedings).

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

The Draft does not establish specific situations in which employers need to inform external authorities about the whistleblowing. However, if the reported act or omission could be considered a criminal offence, the employer should inform the public prosecutor. If the reported act or omission could be considered an administrative infraction, the competent authority should also be informed.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

There is no such legal requirement.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

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.

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

An employer may have an obligation to inform external authorities about misconduct discovered as a result of whistleblowing in some instances. For example, the discovery of potential shareholder fraud may in certain circumstances need to be disclosed to the SEC.

Last updated on 29/07/2022