The legal landscape surrounding whistleblowing continues to change and evolve as new legislation is passed and new case law develops.
Here are a few of the most important recent changes from around the world.
Polish lawmakers have introduced new provisions requiring banks and investment firms to implement whistleblowing systems and provide effective protection to whistleblowers.
The whistleblowing service must also allow for reports to be submitted anonymously.
Generally, there are still no provisions in Polish law requiring Polish companies (outside those in the financial sector) to implement a whistleblowing system or protect whistleblowers.
This new legislation is, however, an indication that the fundamental the position of the whistleblower is beginning to gain recognition, which may lead to more generally applicable legislation in the near future.
On 1st October 2017, provisions in the Employment Act (Northern Ireland) 2016 were formally enacted. These provisions:
- remove the good faith reporting requirements
- include public interest disclosures in those considered ‘protected’
- increase further recompense for reporters who have been discriminated against
- require companies to produce annual reports on whistleblowing disclosures.
The changes bring Northern Ireland closer to the UK’s position, placing the focus on the report itself (rather than the reporter).
The most important aspect of this change for the employer is that any individual or company can become the subject of a vicarious liability claim for discrimination.
Whilst the affected party can choose to seek a remedy against a fellow worker, it’s more likely they will pursue remedy with the employer. This increases the incentive for employers to protect disclosers from discrimination – even from their co-workers – and help foster a positive speak up culture.
Practical application: Case law example from the UK
Introducing the public interest requirement may, superficially, appear to limit the applicability of protection to whistleblowers. But if case law from the UK is any indication, the threshold for satisfying public interest may not be as difficult as it first appears.
The case of Chesterton Global Ltd v Nurmohamed  examined what constitutes ‘public interest’ when considering protected disclosures.
Lord Justice Underhill asserted that: “A claimant’s belief [that it is in the public interest] may be reasonable even if it is wrong,” and that the ‘public interest’ does not need to be the reporter’s predominant motive in making a disclosure.
The Court of Appeal confirmed that factors such as the number of workers affected, nature of interests affected, nature of wrongdoing disclosed and identity of the alleged wrongdoer may also be relevant.
A parliamentary review of the Public Servants Disclosure Protection Act 2007 (PSDPA) has called for legislative changes to provide more protection for the discloser from discrimination in the workplace from colleagues as well as the company.
The 120-page report, produced by Canada’s House of Commons Standing Committee on Government Operations and Estimates, recommends a reversal of the burden of proof. This would place the onus on the employer to demonstrate that no reprisals had been taken against the whistleblower.
The Committee also proposed broadening the term “wrongdoing” – a move that would, in itself, lead to more disclosures being considered ‘protected’.
As in Northern Ireland, there is also the intention to repeal the ‘good faith’ requirement affording protection to the reporter – provided they reasonably believe what they disclose to be true.
All recommendations are focused on the protection of the reporter and shifting the focus to the issue, rather than the individual reporting it. Whilst this must be considered a positive move, it must be noted that the legislation only covers the public sector.
Australia has also examined its whistleblowing provisions for the private sector recently, with the Parliamentary Joint Committee on Corporations and Financial Services producing a report of its recommendations in September.
The recommendations include allowing anonymous reporting, the omission of a good faith requirement and the creation of a central authority to oversee matters relating to whistleblowing.
Unifying whistleblowing provisions into one piece of legislation appears to be the aim behind the various proposals, but with numerous provisions across various sectors and jurisdictions this will prove to be a laborious task and likely to take some time.