EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ) PROTECTING WHISTLEBLOWERS

Transcription

1 DIRECTORATE GENERAL HUMAN RIGHTS AND RULE OF LAW DGI 28 May 2013 EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ) MEETING TO CONSULT KEY STAKEHOLDERS ON PROTECTING WHISTLEBLOWERS May 2013 (Strasbourg, Palais de l Europe, Room 9) EXPLANATORY NOTES Document prepared by the Secretariat Directorate General of Human Rights and Rule of Law - DG I

2 Introduction The Council of Europe, through the European Committee on Legal Co-operation (CDCJ), is currently working on the preparation of a draft recommendation of the Committee of Ministers to member States on protecting "Whistleblowers". These individuals report acts and omissions in their workplace which represent a serious threat or harm to the public interest or make disclosures of information on such facts. The adoption of a recommendation is a collective expression of European intergovernmental opinion on a subject matter, which gives it a certain authority, even it does not have the same obligatory force as would a convention. The draft recommendation which is the subject of this consultation calls Council of Europe member States to establish a normative, institutional and judicial framework for the protection of whistleblowers. The principles set out therein are intended to guide member States wishing to modernise their legal systems. This meeting aims to involve key stakeholders in the process of elaborating the draft text of the recommendation, by consulting them in particular on major issues which require development in order to finalise its preparation. The CDCJ will finalise and approve the draft text during its plenary meeting (16-18 October 2013) before submitting it to the Committee of Ministers for adoption. Each session will be led by a moderator who will be responsible for directing the discussion, reframing the debate, and time management. To facilitate the exchange of views and experiences in this area, and to bring clarification to the elaboration of the draft recommendation, keynote speakers will address the key issues identified below and grouped by theme. A meeting rapporteur will take notes of the views expressed by the participants and will present his concluding remarks at the end of the conference. His report will be transmitted to the Committee responsible for the preparation of the draft text. The issues to be discussed have been regrouped under three different but complementary themes. Participants may therefore be called upon to share their views on these issues from the different angles of the themes covered. 2

3 Freedom of expression, transparency and privacy What should be the balance? What place should be given to anonymity and confidentiality? Key issues regrouped under this theme can be found in paragraphs 12, 13, 14, 15 and 17 of the draft recommendation. The draft recommendation seeks to obtain a balance between freedom of expression/transparency and the protection of internal data, be that commercial or personal, by the company or organisation. Is this balance achieved in the current version of the draft text? Freedom of expression of the whistle-blowers must ensure the security and safeguarding of the public interest. Bearing in mind the recommendation s objective of encouraging the act of whistleblowing, balanced regulations on the protection of whistleblowers should allow them to act without fear of any threat to their jobs, their physical or financial wellbeing or their personal lives. Is the granting of protection to employees a sufficient means of encouraging whistleblowing? In speaking freely to give warning, should a person systematically benefit from the protection specific to whistleblowers? Must such protection be maintained for a person who discloses information in good faith which ultimately proves to be incorrect? Confidential disclosure would be an alternative to silence and anonymous disclosure. Confidentiality constitutes a way of protecting the whistleblower while encouraging the disclosure of information. The confidentiality of the identity of whistleblowers should have the effect of legitimising and destigmatising official reports: does this constitute an additional guarantee to the freedom of expression of the whistleblower? Is it prescriptive? Are there any brakes to such a route? Should there be a degree of confidentiality? What should be the steps taken by the whistleblower? Should we, where appropriate, encourage the establishment of a system of incentives by way of reward for reporting or disclosure contributing to the protection of public interest? Anonymous reporting, by any employee who does not reveal their identity, is not covered by the draft recommendation in that they are considered contrary to the honest and responsible reporting encouraged by the draft text and that they raise legal and social problems: production of evidence before a court, unhealthy atmosphere within the company. Can whistleblowers, who make reports anonymously, still benefit from its intended protection? If so, under what conditions? The draft recommendation provides a national framework for disclosure in the public interest and reporting, including internal reporting. The latter is particularly encouraged because it provides a form of transparency which helps to reduce, or even to prevent at an early stage, the extent of possible serious harm and limit the disclosure to the single enterprise level. 3

4 Legal framework Public interest: Does it need to be defined? Should it exclude minor acts of wrongdoing? Blow the whistle in the public interest and leak confidential information are two different things. Certain subjects are rightly confidential, whether it be the government, the courts, the police or an individual. And what might interest the public is not necessarily in the public interest. The draft recommendation gives protection to whistleblowers who disclose on acts and omissions in the workplace that represent a serious threat or harm to the public interest 1. This is the definition given of the public interest. Is the condition of seriousness appropriate? Might not including in the material scope of the recommendation any act that harms the public interest create a risk of encouraging pointless disclosures without interest? How serious should be the object of the disclosure? How should the degree of seriousness be assessed? So, should minor acts and omissions, not having any immediate consequences but which, if repeated over time, can seriously harm the public interest be included within the material scope of the recommendation? Or should they be excluded? Should such acts and omissions be necessarily illegal for them to represent a serious risk or harm? Certain activities which are not, at first sight, illegal or worrying may later cause health and safety problems (for example, fatal accidents caused by old and forgotten electric wiring). Should these types of acts and omissions be covered by the draft recommendation? Diversity of legal systems: Does the draft legal instrument adequately reflect or take account of the diversity of legal systems in member states? The draft text recommends states to ensure that the national framework reflects [ ] a comprehensive and coherent approach to facilitating public interest disclosure and reporting 2. Does this necessarily imply a single law? Would a legislative act be more coherent? Would it represent the best means of covering the subject in an exhaustive manner? And would it be easier to disseminate to all relevant parties? On the other hand, should a sectorial approach necessarily be excluded? Should public and private sectors be treated separately? 1 See paragraph 1 2 See paragraph 7 4

5 The draft text proposes to guarantee the whistleblower to be protected against detriment of any form [ ] 3. Within the different national legislations there a various systems of protection (e.g. labour law, harassment law, anti-corruption law). The level of protection varies according to the legal status given by the state to the whistleblower. A protection system based on labour law will only cover the employee. A consultant or a sub-contractor would have less protection than the employee. Is it possible to have a protection system that will be appropriate for all whistleblowers? Is a simple moral obligation on the employer sufficient or is it necessary for the law to impose a moral responsibility? Internal reporting (within the enterprise/organisation): Do employers require assistance to put in place internal reporting procedures? In order to encourage internal reporting within the businesses, the draft recommendation provides that if necessary, assistance should be given 4 to employers who wish to put in place internal reporting procedures. Can all employers, whatever their size, benefit from such assistance? Do specific arrangements exist for micro-businesses? What type of assistance has proved to be the most effective? Who should have the responsibility for putting it place? 3 See paragraph 18 4 See paragraph 14 5

6 Remedies and procedures A wider notion of the work place? How to protect, and what remedies for, whistleblowers outside the employer-employee relationship (job applicants, retired workers, independent contractors, trainees, volunteers)? The draft recommendation has a wide personal scope 5. The focus is on the work relationship rather than on the workplace. Trainees, volunteers, consultants, free-lance workers as well as people who are no longer connected to the business would all benefit from protection. However, it is necessary to define more precisely the nature of the work relationship. The nature and scope of the methods of protection will vary, depending on it (for example, it is easier to break a contract with a consultant or a free-lance worker than to dismiss a paid employee). How, in order to facilitate disclosures, can an adequate level of protection be given for these different categories of people? What means of appeal should be made available to them? Legal obligations v. public interest: What should be the balance between contractual or other legal obligations of loyalty or confidentiality and public interest disclosure? The draft recommendation foresees that employers should not be able to rely on a person s contractual obligations in order to prevent him or her from making a public interest disclosure or to penalise the person for having done so 6. However, in a contractual relationship confidentiality clauses can be included in the contract requiring a level of discretion that may vary according to the work relationship. How can the measures in a national framework on whistleblowers be reconciled with such contractual obligations? Is it necessary that the national legislation be given explicit precedence over the contractual obligations between paid worker and employer? Is it necessary to set a limit on what is permissible to disclose and what is not? To what extent is the duty of discretion (secrecy) compatible with freedom of expression and the principle of transparency? What mechanisms should be put in place in order that the paid worker might side-step his or her contractual obligations without fear of repercussions? What role should be given to professional privilege for certain socio-professional groups, such as the legal and medical professions? 5 See paragraph 3 and 4 6 See paragraph 9 6

7 Burden of proof: Should the evidential burden on whistleblowers be lightened and, if so, how? Should the burden of proof on whistleblowers be lightened? Can a whistleblower disclose any potentially wrongful act or omission on the sole basis that s/he has a reasonable belief? Should national legislations contain a list of the acts and omissions that might be the object of a disclosure, even if for indicative purposes only? Should there be a limitation period? The draft recommendation provides that Protection should not be lost on the basis only that the individual making the report or disclosure was, in good faith, mistaken as to its import or that the perceived threat to the public interest has not materialised 7. Is the principle of good faith appropriate in this context? If yes, should the notion of good faith be defined? How can the employer s lawyers be prevented from taking advantage of this principle and using it to attack the honesty of the whistleblower? A disclosure can adversely affect not only the subject of the disclosure and the workplace colleagues of the whistleblower but also the economic health of the business. Who should be responsible for compensating for any harm caused by a whistleblower acting in good faith but who has inaccurately assessed the facts or likewise where the perceived risk to the public interest has not materialised? The employer, on its side, has to prove that any measure taken against the whistleblower was not taken because of the disclosure. For this purpose, should there be a rebuttable presumption on the employer? Should there be a time-limit on this burden of proof? In the case of a whistleblower who, for example, is dismissed ten years after having made the disclosure on whom should the burden of proof rest as to reasons for this action? How might the public authorities check the accuracy of the facts reported by the whistleblower? How can they assure that appropriate follow-up action is taken? Should independent bodies be commissioned to carry out this control? 7 See paragraph 13 7