The EU Whistle-blower Protection Directive – Get prepared!
Authors: Paul Gonzi, Partner and Head of the Employment Law Department and and Mattea Pullicino, Associate - Fenech & Fenech Advocates
Whistleblowing in Malta is currently regulated by the Protection of the Whistleblower Act (Chapter 527 of the Laws of Malta), which protects whistleblowers from detrimental action for having raised a legitimate disclosure about an improper practice, including corrupt practices, however, this Act has limited application in that it only applies to certain government entities, voluntary organisations which raise more than €500,000 in donations and public collections and, those few organisations in the private sector that employ more than 250 employees and satisfy a very high threshold in terms of total balance sheet and/or annual turnover.
The European Whistleblower Protection Directive (2019/1937) was enacted in December 2019 and EU Member States, including Malta, have until the 17th December 2021 to transpose the Directive. Employers with more than 250 employees will be required to comply with the new rules immediately upon transposition however, and by way of derogation, a transitional period may be introduced for private-sector employers employing 50 to 249 workers, in which case, compliance with such legislation must be in place by not later than the 17th December 2023. Whether Malta will adopt such transitional period, is yet to be announced.
The Directive seeks to promote a safe and secure way for persons to report and speak up about misconduct in their work environment. Private companies and public entities to whom the Directive applies, will have to set up effective internal reporting channels, ensuring confidentiality and compliance with data protection laws. The Directive seeks to provide for protection from detrimental action, including victimisation when reporting. Companies must therefore have in place clear and easily accessible information which is free of charge in relation to procedures for reporting, protective measures, available remedies and access to advice.
Companies ought to be assessing their existing policies, and assessing whether they already are or will become required to roll out a Whistle-blowing Policy in conjunction with a fully-fledged Whistle-blowing system that works in practice. Launching a whistleblowing mechanism does not happen overnight, rather it requires a detailed process which ensures that the system is compliant with whistleblowing legislation, as well as with ancillary rules such as GDPR, which is likely to warrant a Data Protection Impact Assessment exercise prior to launch. HR teams and employees must also be trained, knowing how to identify and handle whistleblowing, as opposed to the handling of grievances and disciplinary processes.
We continue to monitor developments and shall be issuing further updates on this subject.
©Fenech & Fenech Advocates 2021
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