IS THE WHISTLEBLOWING A LEGAL OBLIGATION
FOR COMPANIES?
On 16 December 2019, the European Directive 2019/1937 for the protection of complainants entered into force, with the obligation for Member States to transpose this Directive within a maximum period of two years, and through which we can define the
whistleblowing as the internal complaint channel used by a person within the company (usually the worker, for any breach committed in the same).
This Community rule requires that companies with more than 50 employees or whose annual turnover exceeds 10 million euros, public bodies and authorities, as well as municipalities with more than 10,000 inhabitants, offer channels of internal complaint that guarantee the confidentiality of the same and the protection of the complainant.
The Directive provides for the obligation to take the necessary measures to prohibit any form of retaliation against those workers who report infringements within the company, ensuring a high level of protection for whistleblowers who report infringements of EU law. . The primary objective of the Directive is to establish a common mechanism for reporting and protecting persons who report irregularities committed within the entities, whether public or private, and relating to the following matters:
• Public procurement.
• Financial services, products and markets, and prevention of money laundering and terrorist financing.
• Product safety.
• Transport safety.
• Environmental protection.
• Radiation protection and nuclear safety.
• Food safety, animal health and animal welfare.
• Public health.
• Consumer protection.
• Protection of privacy and personal data and security of networks and information systems.
• Any other matters that are included by the Member States when transposing the Directive.
The complaints channel may be managed directly by the company, through the department designated for this purpose, or by an external company.
Likewise, the necessary measures must be taken to prohibit all forms of retaliation against complainant workers and, in particular, the following conduct is prohibited:
• Suspension, dismissal, dismissal or equivalent measures.
• Degradation or refusal of promotions.
• Substantial change in working conditions, resulting from a change of job, a change in the location of the job, a reduction in salary or a change in working hours.
• Denial of training.
• Evaluation or negative references regarding their work results based on the performance evaluations performed.
• Imposition of any disciplinary measures
• Coercion, intimidation, harassment or ostracism (psychological harassment in the strict sense)
• Discrimination, marginalization or unfair treatment.
• Failure to convert a temporary employment contract into permanent employment, in the event that the worker has legitimate expectations that he or she would be offered permanent employment.
• Non-renewal or early termination of a temporary employment contract.
• Damage, including to your reputation, especially on social media, or economic losses, including loss of business and income.
• Inclusion in blacklists on the basis of a sectoral agreement, formal or informal, which implies that in the future the person will not find employment in this sector.
• Early termination or cancellation of contracts for goods or services.
• Cancellation of a permit or authorization.
Until now, it had been the Social Jurisdiction which, in the absence of a Community regulatory framework, had prohibited any form of discrimination or abuse by companies and arising from the reporting of infringements in the field of labor relations ( the so-called “indemnity guarantee”). Through Community regulations, since December 2021 this obligation has been transferred to companies, public or private, state, regional or local bodies.
For this reason, it is necessary for companies to assess the adequacy of the measures already adopted in the new Community regulations, and it is advisable that those who have not had a specific provision in the matter, turn to professional experts in the field of
compliance
labor in order to comply with the legal obligation at the time it is required.