Topic of this article: retaliation and protection against reprisals.
It has been widely reported that the whistleblower protection law is the result of the transposition of a European directive, which is of great importance and can be an asset for companies, as it allows them to identify, within their own organization, what needs to be corrected, improved or changed.
Now, we are aware that workers, service providers, volunteers and trainees, holders of shareholdings and members of administrative, management, fiscal or supervisory bodies can be whistleblowers, under the terms of the law. So, if we’re talking about reports from employees themselves or people related to the company, and if the aim is to allow and encourage reports of irregular situations, how can this happen if whistleblowers aren’t protected?
Obviously, especially in smaller structures, workers, service providers, trainees, and even partners and members of governing bodies will feel constrained in doing so if there is no adequate protection and awareness of this protection.
Let’s see, the law determines that a whistleblower who, in good faith and convinced that he or she is reporting a real situation, enjoys the prerogatives set out therein. Before we talk about them, it’s important to emphasize these two requirements: good faith and the conviction that they are reporting true situations. This means that, although the law protects the whistleblower, he or she cannot use bad faith and lies in the report, since this is a situation that can ultimately be resolved in disciplinary and criminal proceedings.
The whistleblower always has the option of reporting anonymously. However, even if this is not the case, your details will remain confidential to the entity being reported.
In this sense, those being reported are prohibited from retaliating against whistleblowers.
Retaliation is understood to be any act or omission, even if attempted or threatened, which, directly or indirectly, in a professional context and motivated by an internal or external report or public disclosure, causes or may cause the complainant, in an unjustified manner, pecuniary or non-pecuniary damage.
The rules state that situations which occur in relation to the whistleblower within two years of the date of the report constitute a presumption of retaliation. Let’s take a specific look: issues related to changes in working conditions or remuneration, failure to promote the employee or breach of employment duties; suspension of an employment contract; negative performance evaluation or negative reference for employment purposes; failure to convert a fixed-term employment contract into an open-ended contract (when the employee had legitimate expectations of such a conversion); non-renewal of a fixed-term employment contract; dismissal; application of a disciplinary sanction; termination of a supply or service contract; among others. This presumption of retaliation can be rebutted by the reported entity.
The protection of whistleblowers is also extended, with the necessary adaptations, to the natural person who assists the whistleblower in the whistleblowing procedure and whose assistance must be confidential, including trade union representatives or workers’ representatives; to a third party who is linked to the whistleblower, such as a work colleague or family member, and may be the target of retaliation in a professional context; and to legal persons or similar entities owned or controlled by the whistleblower, for whom the whistleblower works or with whom he is in any way linked in a professional context.
A whistleblower who violates this provision incurs a very serious administrative offense, the fine for which is between €1,000 and €25,000 for natural persons and between €10,000 and €250,000 for legal persons.
It is therefore important that the obliged entities, on the one hand, publicize the existence of the whistleblowing channel to those who may be whistleblowers, encouraging its use and, on the other hand, provide training in this area, especially with regard to its protection.
Cláudia Cerqueira – Solicitor
To go deeper on retaliation and protection against reprisals, see also:
Official source: Directive (EU) 2019/1937.
