Whistleblowing Across Borders: Czech Republic, Germany and Great Britain
Following the EU Whistleblowing Directive ‘Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law’, an advance in transpositions across the continent could be seen in the second half of 2022 where domestic jurisdictions integrated the measures of the Directive. The Directive was well accepted across Europe because it filled a long overdue legislative gap in the protection of those who spoke out about misconduct or unfair treatment in the workplace. This article will explore whistleblowing legislation across borders (CZ, DE and GB) with particular focus on the history, effects and implementation.
Background
After long periods of legal uncertainty and a first draft of whistleblowing legislation in early 2021 not being passed, the Czech Republic is excited to announce that as off 1st August 2023 the new Act No. 171/2023 Coll. on the Protection of Whistleblowers (Hereinafter the "Protection of Whistleblowers Act") and related Act No. 172/2023 Coll. Czech Republic’s neighbouring country Germany, in comparison, had its first push toward such legislative framework with the ‘Gesetz zum Schutz von Geschäftsgeheimnissen’ introduced in 2019 and finally implemented the EU Directive into national legislation by virtue of the ‘Hinweisgeberschutzgesetz’ (Hereinafter the "HinSchG") on 16th December 2022 almost 8 months before the Czech Republic.
It seems interesting to note that Great Britain, now outside of the EU, started thinking about such legal protection two decades before us in Europe with the Public Interest Disclosure Act 1998 (Hereinafter the "PIDA"). This is not to say that Great Britain had it seamless from the late 90s in fact many successive governments worked on strengthening whistleblowing policies and practices.
What is the Whistleblowing Act for and who does it protect?
Whistleblowing legislation is primarily targeted at offering protection for those who report unlawful or suspicious conduct within an organisation or business by enabling transparency and seeking to prevent from potential sanctions or consequences for that individual e.g threats to be laid off.
The Czech ‘Protection of Whistleblowers Act’ under its § 2 enables anyone to report misconduct within an organisation this includes, but is not limited to, employer-employee relationships, volunteering, self-employment, internships, those in receipt of a service and job applicants. Although, the newly introduced provision is extensive and intends to protect the so-called whistle-blower, the Czech law does not support anonymous applicants. Therefore any whistle-blower must ensure their notification includes relevant details for them to be identified. This is to protect people from false reports submitted maliciously. However, a truly innocent notifier can rest assured that their data will be secured in an internal system respecting the confidentiality of the individual concerned; identifiable information will only be sent upon written consent and only if it is necessary for the purpose of the report being investigated.
Similarly in Germany, nearly every individual who comes into contact with an organisation in whichever capacity can submit a claim, but they will need to provide their personal details. § 8 HinSchG does, however, ensure the confidentiality of the notifier and only in the exceptional cases mentioned in § 9 HinSchG can the individual’s details be shared.
Under the PIDA in GB, only those who are considered a ‘protected worker’ can notify the ‘prescribed persons’ (the people who you notify). Although, Great Britain has an extensive list as to who can be considered a ‘protected worker’, it has taken until the decision in McTigue v University Hospital Bristol NHS Foundation in 2016 and the Supreme Court ruling in 2019, for agency workers and ‘office holders’ (clergy, company directors and board members) to also be granted protection. One can now see that despite whistleblowing framework having existed longer in Great Britain than in the rest of Europe, countries like the Czech Republic and Germany have caught up well.
Protection against retaliation
(Act No. 171/2023 Coll. and related Act No. 172/2023 Coll.)
Arguably, the most important reason for the implementation of the Whistle-blower Protection legislation is to protect whistle-blowers from retaliation. Retaliation examples include prohibited measures, such as termination of employment, wage reduction, removal from the position of a senior employee, change of working hours or imposition of disciplinary measures pursuant to § 4 of the Protection of Whistleblowers Act.
The new Act not only provides protection from retaliation for the notifiers themselves but also anybody who provided assistance in identifying the information contained in the notification, colleagues of the whistle-blower, persons close to the whistle-blower and other methods the alleged wrongdoer is in ‘control’ of their employee such as a trust of which the notifier is the founder or beneficiary.
If it is found that there has been misconduct and a retaliation has occurred, the persons covered by this Act who have suffered non-pecuniary damages as a result, shall entitle them to adequate steps to be taken to un-do the damage caused. It goes without saying that protection is not granted to those who made a knowingly false report (without having reasonable grounds to believe that the report was based on true facts). The notifier of the false allegation can expect a fine of up to CZK 50,000 pursuant to § 23 of the Protection of Whistleblowers Act.
What now?
In the Czech Republic, the Act is effective as off 1st August 2023 but relevant entities employing 50 – 249 employees have an extension until 15th December 2023 in order to introduce an internal notification system.
The deadline for organizations operating in Germany with at least 250 employees passed on 2th July 2023. Fines will be applicable for those organizations who do not manage to introduce an internal notification system from 1st December 2023. However, organizations employing 50 – 249 employees have until 17th December 2023 to implement the required systems.
At current, Great Britain are conducting research into their provisions by synthesizing existing evidence and analysing the different perspectives and roles of relevant people and professionals. This is due to be completed in Autumn 2023.
For more information, please do not hesitate to contact us at:
JUDr. Mojmír Ježek, Ph.D.
ECOVIS ježek, advokátní kancelář s.r.o.
Betlémské nám. 6
110 00 Praha 1
e-mail: mojmir.jezek@ecovislegal.cz
www.ecovislegal.cz
O ECOVIS ježek, advokátní kancelář s.r.o.
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