What is whistleblowing?
The system for reporting irregularities by whistle-blowers is called whistleblowing. Specifically, employees, collaborators, or even people outside of an organization report actions or activities that violate the law, are incorrect or unethical, whether committed by the employer or by other employees. The reporting of the irregularities is made through the channels provided by the organization itself, according to the law, and may entail disciplinary or criminal sanctions for the reported person, if the investigation confirms the issues revealed by the rapporteur.
The person who makes such a report on acts or actions that violate the law and/or ethics is called whistle-blower, regardless of whether the events they blow the whistle on were or are committed by their employer or by colleagues, and whether the organization is part of the public or private sector.
The quality of being a whistle-blower is not officially assigned but belongs by default to the person who makes the disclosures and who must comply with certain conditions to be classified as a whistleblowing report: to be made only through the reporting channels provided by the organization, to respect the order established by law, to be made not for the purpose of obtaining benefits and not due to personal or professional conflicts between the rapporteur and the reported.
The legal framework
The first actions that can be considered whistleblowing date back to the seventh century, when lawmakers began to use ordinary citizens to detect and destroy illegal schemes and practices, rewarding them some of the money they recovered due to their help.
Back to present days, in 2019, the European Union approved a directive by which companies must comply with certain regulations regarding the protection offered to whistle-blowers and established that its provisions must be transposed into national law by December 17th , 2021, in such a way that it will take effect after this date. As a result, in 2021, the Ministry of Justice in our country put in public debate the draft law on “Protection of Whistle-blowers “. Although the European Commission has set a transitional deadline of two years for implementation, at the time of writing this article (February 2022), it has not yet been adopted by the Parliament – the bill is being debated in Parliament’s specialized committees. The Committee on Legal Affairs approved the draft, making some proposals to amend various terms.
According to the draft law under debate, the following will be subject to the law and will be obliged to comply with the obligations imposed by it:
(i) Public authorities and institutions.
(ii) Private legal persons with at least 50 employees.
(iii) Autonomous administrations of national or local interest, national companies, and societies.
(iv) Companies in which the State or a local government authority is a shareholder, regardless of the number of employees.
What the law says and how companies are affected
The obligations provided by law for them are, at present, the following:
– design, implementation, and management of reporting channels, to ensure the confidentiality of the whistle-blower’s identity and that of any other person mentioned in the report, as well as restricting access to information for unauthorized members of the organization.
– the obligation to send the whistle-blower a receipt confirmation for his report, not longer than seven working days since receiving it.
– the designation of a person/department/third party with attributions regarding the reception, registering, investigating, carrying out complementary actions and resolving reports, acting objectively, and having independence in the exercise of these tasks.
According to the European Directive 2019/1937 on the protection of whistle-blowers and the draft law to be adopted by Parliament in this regard, any form of retaliation against rapporteurs is strictly prohibited. Measures that organizations are not allowed to take include:
- suspension of the individual employment contract or the employment relationship.
- dismissal.
- change of the employment contract or the employment relationship.
- demotion or impediment to job promotion and professional development.
- disciplinary sanctions.
- coercion, intimidation, harassment, or ostracism.
- discrimination, creating disadvantage or being subjected to unfair treatment.
- refusal to convert a fixed-term employment contract into an indefinite-term employment contract, if the worker had legitimate expectations that he would be offered a permanent job.
- refusal to renew an employment contract for a certain period or the early termination of such a contract.
- causing damage, including to the reputation of the person concerned, on social media platforms, or financial loss, including in the form of loss of business opportunities and loss of income.
- inclusion on a blacklist or in a negative database, based on a formal or informal niche or industry agreement, which may mean that the person concerned will not find a job in that future sector or industry.
- early termination or cancellation of a contract for goods or services.
- cancellation of a license or permit.
- requesting a psychiatric or medical evaluation.
The draft law transposing the Whistleblowing Directive into national law states that the report must include at least: name and surname, contact details, professional context in which the information was obtained, description of the act likely to constitute an infringement, evidence in supporting the report and, where appropriate, the signature.
The whistle-blower’s identity will thus be known only by the designated person in charge, whether they are part of the organization or outside it, and, as the case may be, by the organization’s manager, if the reporting does not concern them. In the case of reporting aspects that meet the constituent elements of a crime, the whistle-blowers may benefit from the protection measures provided by the criminal law.
The anonymous warning given by an employee has not been discussed in the European Directorate, nor in the drafting of the law on whistle-blowers’ protection, but it contains the provision stating that the report must contain the identification data of the whistle-blower, as well as other data to help identify the competence to resolve the complaint.
The advantages and disadvantages of whistleblowing
Here are some of benefits of implementing a whistleblowing reporting system:
– the managers’ ability to identify employees who are committing or preparing to commit illegal acts on carrying out professional activities.
– establishing identification methods for stolen documents or goods, recovery of damages, based on the activity of the company or a collaborator.
– discouraging employees who undertake or are preparing such illicit actions within the framework of the organization in which they operate.
– the manager becomes aware in due time of the existence or development of illegal actions within the company and can establish vulnerable areas of activity/departments/processes and procedures.
– managers can take measures to reduce or eliminate vulnerabilities (identified as a result of subsequent reports or investigations) to prevent fraud.
– increasing the level of trust among stakeholders.
– the company’s healthy development.
– consolidating an anti-fraud culture.
– major reduction of damages caused by internal, external, or mixed fraud.
The disadvantages of implementing the whistleblowing reporting system are minimal, if not non-existent, and refer to the employees involved in wrongdoing, which may have some repercussions for their involvement in violations of the law, in connection with their job.
The role of investigators in whistleblowing
The EU Directive’s implementation, as adopted by the European Commission, has created an opportunity for private companies to work with third parties to support the integration of measures to increase their employees’ level of integrity, as well as to encourage them to report illicit deeds from within the organization, and not only.
Identifying and implementing effective measures and procedures to protect whistle-blowers increases their identity’s confidentiality, as well as that of the subject data and the reported breach.
This context is conducive to conducting business intelligence investigations, so that private companies can call on our services to conduct anti-fraud investigations, to identify the causes and circumstances of wrongdoing, and to substantiate the manager’s decision regarding those involved, or, as the case may be, to notify the competent authorities.
In addition, working with a corporate investigation agency, such as SPIA, gives managers the opportunity to have most of the information they need to make decisions about the correctness of whistle-blower issues upon completion of private investigations.
Given that the European Whistleblowing Directive allows for the outsourcing of responsibility for the receipt, registration, review, follow-up, and settlement of employee reporting, it is possible to create a common reporting system for several companies, especially if they are part of the same group, have similar activity fields or if they are in business relations.
Among the advantages that companies have in working with a private investigator in a whistleblowing report are:
– the verifications are performed by persons with expertise in the field.
– full protection of the whistle-blower’s identity or third-party persons indicated in the notification is ensured.
– the penetration of the investigator in the work environment related to the notified aspects.
– carrying out the verifications in compliance with the normative framework in force, which makes the report on the investigations’ outcome can be evidence in a court action.
– the corporate investigation agency provides full technical and logistical support.
– SPIA investigators’ availability to travel to secondary offices or other locations, to complete the data required in the anti-fraud investigation.
– access of a limited number of people in the company to the data resulting from the investigations.
– the confidentiality of data obtained from investigations in relation to other employees of
within the company and with other people.
– decreasing the activity volume for the company’s employees, by relieving them of
investigative actions, which require specialization and expertise.
– the investigation’s result is available in a relatively short time.
– complete data on the reported issues are obtained.
– new aspects that are related to the notification or to the involved employee are identified.
– identification of existing vulnerabilities in the company’s activity.
– establishing with certainty the involvement/non-involvement of some employees.
– specialised advice provided during and after the investigation.
Here, you can read more about our complete package of services, which covers all 3 spectra of action – prevention & education, implementation of the whistleblowing solution and specific measures & post-reporting actions.
If you need support in the implementation of whistleblowing, we are at your disposal at contact@spiaromania.com.
