Skip to main content

On-demand webinar coming soon...

Blog

The EU Whistleblower Protection Directive: Retaliation and the reverse burden of proof

Does your whistleblower retaliation strategy meet the requirements of the EU Whistleblower Protection Directive?

 

Kelly Maxwell, Content Marketing Specialist, OneTrust
June 16, 2022

N/A

Imagine this: After submitting a whistleblower report, a man experiencing ongoing and relentless harassment at work has a heart attack. His young son, believing his father can no longer work and their lives will be upended, attempts suicide. Another scenario: A woman attempts to blow the whistle anonymously, but her identity is revealed, and her employers destroy her reputation. She loses not only her job and any prospect of a new one, but also her home. She ends up begging on the streets of London.

As dramatic as these stories are, they are real examples of the true impact of whistleblower retaliation. Often, the retaliation leading up to such horrifying consequences is so subtle and insidious that other managers and employees are totally oblivious to it. That’s why the anti-retaliation requirements of the EU Whistleblower Protection Directive are a positive – and necessary – step forward for companies in the European Union.

Your company likely has an anti-retaliation policy in place, but is it enough to meet these new anti-retaliation requirements within the EU Whistleblower Protection Directive? Let’s dive into what the Directive’s anti-retaliation requirements are, what they mean for your company, and what you need to do in order to comply.

Whistleblower Retaliation Policy: Anti-Retaliation requirements

The EU Whistleblower Protection Directive specifies that employees, former employees, subcontractors, shareholders, suppliers, and other third parties will be protected from dismissal, suspension, demotion, and other forms of whistleblower retaliation, in response to submitting a whistleblower report. Additionally, those who support a whistleblower are also protected from experiencing retaliation.

The most significant anti-retaliation requirement within the Directive is the “reverse burden of proof.” For the first time in a wide-ranging directive, individuals are no longer required to prove that they have experienced whistleblower retaliation. Instead, the company must prove that no retaliation has occurred. If they can’t, they’ll face penalties.

How does the EU Whistleblower Protection Directive define Whistleblower Retaliation?

The EU Whistleblower Protection Directive defines retaliation broadly. The list of retaliatory actions covered by the Directive includes:

  • Suspension, lay-off, dismissal or equivalent measures
  • Demotion or withholding of promotion
  • Transfer of duties, location changes for place of work, reduction in wages, or change in working hours
  • Withholding of training
  • A negative performance assessment or employment reference
  • Imposition or administration of any disciplinary measure, reprimand, or other penalty, including a financial penalty
  • Coercion, intimidation, harassment, or ostracism
  • Discrimination; disadvantageous or unfair treatment
  • Failure to convert a temporary employment contract into a permanent one, where the worker had legitimate expectations for a permanent employment offer
  • Failure to renew, or early termination of, a temporary employment contract
  • Harm, including to the person’s reputation, particularly in social media, or financial loss, including loss of business and loss of income
  • Blacklisting based on a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry
  • Early termination or cancellation of a contract for goods or services
  • Cancellation of a license or permit
  • Psychiatric or medical referrals

 

What Anti-Retaliation “Protective Measures” does the directive require?

The EU Whistleblower Protection Directive mandates that companies implement safeguards to prevent the above actions – plus more indirect forms of whistleblower retaliation – and communicate those safeguards to their workforces and third parties. Additionally, the Directive requires that whistleblowers’ identities be disclosed only to authorized staff members who are competent to receive and respond to reports. The same protection extends to those who assist and support whistleblowers and those who are implicated in whistleblower reports.

It is likely that future whistleblowing cases will put scrutiny on what protective measures and anti-retaliation policies were in place at the time of the report, and how effectively they were deployed.

What does the EU Whistleblower Protection Directive’s “Reverse burden of proof” mean?

Under this stipulation, companies must prove that whistleblowers have faced no retaliation as a result of their report. This is a unique and novel approach to whistleblower retaliation. Instead, the company must prove that no retaliation has occurred.

Given the Directive’s purpose of protecting whistleblowers, retaliation is a significant area of focus. The Directive presumes that when a whistleblower suffers some sort of detriment at work, that detriment exists as a form of retaliation to their report. Whereas previously, whistleblowers needed to prove that they experienced retaliation, now employers and companies are accountable for proving that no retaliation has occurred. Individuals are no longer required to prove that they have experienced retaliation.

Preventing and Detecting Retaliation

If your anti-retaliation strategy begins and ends with a policy, it’s time to go back to the drawing board. The Directive’s reverse burden of proof calls for a much more proactive approach to preventing whistleblower retaliation.

The first step is to examine what processes are already in place within your company to address whistleblower retaliation. For example, do you have analytics that can predict the risk of retaliation based on the report? Do you communicate anti-retaliation measures to those parties that may retaliate? Do you follow up with reporters? What is the timeline and process for following up, and what does your follow-up screen for?

How to comply with the EU Whistleblower Directive’s anti-retaliation requirements

Complying with the EU Whistleblower Directive’s anti-retaliation requirements starts with examining your current anti-retaliation policy, processes, and strategy. When you’ve ensured that your policy is comprehensive and up to date, communicate it to your workforce and all third parties using awareness campaigns. Where training is necessary – for high-risk individuals and managers, for example – ensure that those people are aware of your anti-retaliation policy and procedure, the requirements of the Directive, and the consequences for falling short.

A whistleblower retaliation risk assessment may be a helpful tool in benchmarking the current status of retaliation within your company. That process begins with establishing your markers of retaliation – for example, pay raises, performance reviews, and relocations – and establishing a “normal range” for each marker. Some markers can be measured with HR data, and some may require a higher-touch approach; regardless, measure each marker against the reports you’ve received over the last year and make note of any outliers.

When you know what you’re dealing with, you’ll be much better equipped to form a prevention plan. Still have questions about this new regulation? Download our helpful guide where Asha Palmer, OneTrust’s Chief Ethics and Compliance Officer and Head of the Ethics Center of Excellence, outlines what will be enforced, where, and when under the new directive.


You may also like

Webinar

Supplier Sustainability & Responsibility

Modern slavery: Identifying exploitation and managing forced labor risks

In this webinar, OneTrust and Andrew Wallis, CEO at Unseen, will discuss the scale and impact of modern slavery on businesses' global supply chains.

March 14, 2024

Learn more

eBook

Ethics Program Management

Business messaging apps: A guide to corporate compliance

How can your business use third-party messaging apps while staying compliant? Dive into key usage considerations based on the DOJ’s 2023 guidance.

February 13, 2024

Learn more

Infographic

Third-Party Risk

4 top-of-mind challenges for CISOs in 2024

What key challenges do CISOs face going into the new year? Download this infographic to hear what experts from industries across the board have to say.

January 30, 2024

Learn more

Webinar

Third-Party Due Diligence

Best practices for conducting third-party due diligence for ethics & compliance​

Join this webinar for best practices for conducting third-party due diligence for ethics and compliance.

January 11, 2024

Learn more

Webinar

Ethics Program Management

Ethics Exchange: Third-party applications and ephemeral apps

Learn practical advice on how to navigate the risks of ephemeral apps and employee privacy in BYOD world.

December 05, 2023

Learn more

Webinar

Speak-Up Program Management

Navigating the EU Whistleblower Protection Directive: New rules, new risks

Join our expert-led webinar where we explore the EU Whistleblower Protection Directive and practical steps towards compliance. 

November 02, 2023

Learn more

Webinar

Ethics Program Management

Ethics Exchange: Risk assessments

Join our risk assessments experts as we discuss best practices, program templates, and how provide an assessment that provides the best value for your organization.

October 25, 2023

Learn more

Webinar

Ethics Program Management

Ethics Exchange: Investigations

Join our live webinar and learn how to conduct comprehensive ethics investigations that are trustworthy and efficient.

September 07, 2023

Learn more

Webinar

Third-Party Due Diligence

Driving excellence in third-party risk management: An in-depth look at different due diligence approaches

Join our in-depth webinar and learn how to define third-party due dilligence levels and when to apply them during your vendor management lifecycle.

July 20, 2023

Learn more

Webinar

Third-Party Due Diligence

A shortcut to third party due diligence fundamentals

In this webinar, we examine the scope of third-party due dilligence, best practices, and industry trends driving greater scrutiny on third parties.

July 13, 2023

Learn more

Webinar

Third-Party Due Diligence

Sanctions and export controls: Ensuring compliance

Watch our live expert webinar on understanding global sanctions and export controls and how to reduce your organiztion's risk exposure and ensure compliance.

June 29, 2023

Learn more

Video

Third-Party Risk

Third-party management demo

See how OneTrust's third-party management solution can help scale your third-party lifecycle and evaluate vendors with real-time risk intelligence.

June 27, 2023

Learn more

Webinar

Third-Party Risk

Unpacking the third-party risk regulatory landscape in the Nordic region and beyond

In this live webinar, our expert panel discuss emerging third-party risk regulatory trends in the Nordic region and show how OneTrust can help your business stay complaint.

May 30, 2023

Learn more

eBook

Third-Party Due Diligence

The global regulations driving third-party due diligence

Download our eBook learn how to start building a robust third-party due dilligence (TPDD) strategy that protects your brand and minimizes risk.

May 30, 2023

Learn more

Webinar

Third-Party Due Diligence

Ethics live Demo: Third Party Due Diligence webinar

Learn how OneTrust's Third-Party Due Dilligence, backed by Dow Jones, can help provide your business the data it needs to find trustworthy third parties and mitigate risk.

May 18, 2023

Learn more

In-Person Event

Ethics & Compliance

Ethics Exchange: Practical deep dive for third-party due diligence

Organizations are accountable for third-party actions, so they need robust due diligence to protect their reputation. Learn more at our ethics exchange event.

May 11, 2023

Learn more

Checklist

Ethics Program Management

Policy on development and administration of policies template

Get a head start on your ethics program and create a policy on development and administration of policies with our customizable template.

May 10, 2023

Learn more

Webinar

Third-Party Due Diligence

Maturing your third-party due diligence program: Process, data & technology

Experts at OneTrust and Dow Jones discuss third-party due diligence, covering industry trends, challenges, and how to streamline the process with technology.

April 27, 2023 1 min read

Learn more

Webinar

Ethics & Compliance

Unpacking the global third-party due diligence regulatory landscape

Learn how a strategic plan for compliance can help companies eliminate human rights and environmental violations and avoid costly consequences.

March 06, 2023

Learn more

Webinar

Ethics & Compliance

Third party due diligence – A practical deep dive

In this session, we'll look into the scope of third-party due diligence and a deep dive into practical implementation aspects and best practices for organizations.

December 13, 2022

Learn more

Report

Trust Intelligence

Trending toward trust

The "Trending toward trust" report from OneTrust highlights seven key trends that organizations need to know.

December 12, 2022

Learn more

Webinar

Ethics & Compliance

The number one metric for effective compliance programs: Continuous improvement

Join our webinar to learn how to develop and/or maintain a High-Quality E&C Program and what role data analytics play in improving your compliance program.

November 27, 2022

Learn more

Webinar

Ethics & Compliance

Best practices for conducting third-party due diligence for ethics & compliance

In this session, we'll explore the scope of third-party due diligence and best practices, such as industry trends driving greater scrutiny on third parties.

November 16, 2022

Learn more

Webinar

Ethics Program Management

Live demo: Conflicts of interest management webinar

Learn how to develop a holistic disclosure program, how to make it part of your risk assessment, and how to use it to meet regulatory obligations.

November 01, 2022

Learn more

Checklist

Ethics & Compliance

The CECO’s third party checklist

Use this checklist to ensure that your ethics and compliance program is effectively managing third parties across the entire relationship lifecycle.

October 28, 2022

Learn more

eBook

ESG & Sustainability

The CECO’s guide to managing third parties eBook

Download this eBook to learn the six steps in the lifecycle of risk-based third-party due diligence, compliance terms, and conditions, payment terms, etc.

October 27, 2022

Learn more

White Paper

Ethics & Compliance

Central vs. local intake and case management under the EU Whistleblowing Directive white paper

Download this white paper to learn the specific intake and case management requirements for local subsidiaries and offices across Europe.

October 25, 2022

Learn more

Webinar

Ethics & Compliance

The role of disclosures in risk assessment and management

In this webinar, we’ll discuss developing a holistic disclosure program, making it part of your risk assessment, and using it to meet regulatory obligations.

October 04, 2022

Learn more

White Paper

Ethics & Compliance

What CCOs need to know about the DOJ compliance certification requirement white paper

Download our white paper to learn how the DOJ’s new policy will empower CCOs, and discover what opportunities this new policy presents for your program.

September 01, 2022

Learn more

Webinar

Ethics & Compliance

How to transform your ethics management program through effective employee engagement

In this webinar, we’ll discuss how to develop a successful ethics management program and how to promote trust by developing awareness.

July 28, 2022

Learn more

White Paper

Ethics & Compliance

DOJ’s 2020 update to the evaluation of corporate compliance programs

This white paper explores the 2020 DOJ Compliance Guidance Update and where it takes corporate compliance programs this year and beyond.

July 15, 2022

Learn more

Checklist

Ethics & Compliance

DOJ self-assessment checklist

This enhanced DOJ guidance sets out a baseline, or the minimum standards, to demonstrate an effective ethics & compliance (E&C) program.

July 08, 2022

Learn more

Webinar

Ethics & Compliance

Conflicts of interest and disclosures

Join this roundtable with your peers and experts in ethics and compliance to discuss how to build a successful conflict of interest management program.

July 08, 2022

Learn more

Webinar

Ethics & Compliance

Effective policy governance and distribution

Join this roundtable to discuss how to create effective policies, run effective campaigns and report on each policy’s performance and influence. 

July 08, 2022

Learn more

Webinar

Ethics & Compliance

GDPR and the EU Whistleblower Protection Directive webinar

Join this webinar to learn how to review your whistleblowing processes to comply with the EU Whistleblower Protection Directive, the GDPR and others.

July 06, 2022

Learn more

Webinar

Ethics & Compliance

Hotline reporting under the EU Whistleblower Protection Directive: Unseen consequences, issues & practicalities

While there have been many articles and discussions around the EU Whistleblower Protection Directive, several significant issues have largely gone unnoticed. 

July 06, 2022

Learn more

Webinar

Ethics & Compliance

A hotline innovation masterclass: communications, awareness & confidentiality

Learn how to effectively train and raise awareness on your hotline and how to share information on the Directive so that your company remains compliant.

July 06, 2022

Learn more

Webinar

Ethics & Compliance

Evaluating hotline vendor compliance with the EU Whistleblower Protection Directive

Join us to learn how to choose a hotline vendor, and we also cover the onboarding and implementation process so that you can meet the Directive's deadline.

July 06, 2022

Learn more

Interactive Tool

Ethics & Compliance

Compliance KPIs worksheet interactive tool

Use this worksheet to understand what data you currently have, what you're lacking that may be important, and what certain data points may indicate.

July 05, 2022

Learn more

Webinar

Ethics & Compliance

Whistleblower retaliation under the EU Whistleblower Protection Directive: the reverse burden of proof

Learn how to implement anti-retaliation measures, and how to detect retaliation throughout the whistleblowing process using some new and novel techniques.

July 05, 2022

Learn more

eBook

Ethics & Compliance

14 key requirements to effective conflicts of interest management

Read this eBook to learn the key requirements that are fundamental to building a successful conflict of interest management program.

June 30, 2022

Learn more

Checklist

Ethics & Compliance

Annual compliance program checklist

Download our annual review compliance checklist to evaluate your E&C compliance program, identify key gaps, and prepare for the future.

June 30, 2022

Learn more

Webinar

Trust Intelligence

Become a trusted brand: 7 ways to promote your security, privacy, ethics and ESG programs

We discuss key points, such as choosing which certifications count the most to your business and how to save time when answering questionnaires.

June 20, 2022

Learn more

Checklist

Ethics & Compliance

Anti-retaliation checklist for compliance programs

Use these 19 questions to take a holistic look at how your program can improve training, investigations, policies, & more to prevent retaliation before it occurs.

June 17, 2022

Learn more

Checklist

Ethics & Compliance

EU Whistleblower Directive checklist

Assess your company's EU Whistleblower Directive compliance with this interactive checklist. 

June 16, 2022

Learn more

eBook

Ethics & Compliance

Ultimate guide to the EU Whistleblower Protection Directive

Download our free eBook on the EU Whistleblower Protection Directive learn its key requirements, who's protected, and answers to common questions. 

June 07, 2022

Learn more

Webinar

Privacy & Data Governance

7 ways trusted brands promote their security, privacy, ethics, and ESG programs

Watch this free webinar and learn 7 ways trusted brands promote their security, privacy, ethics, and ESG programs.

May 17, 2022

Learn more

eBook

Ethics & Compliance

The secret to effective policy management

Download this eBook and discover how a centralized policy management system helps drive compliance and ethics policy effectiveness. 

May 11, 2022

Learn more

eBook

Ethics & Compliance

How to build a speak-up culture

Download this step-by-step guide on building a speak-up culture and improve reporting rates. 

April 25, 2022

Learn more

eBook

Ethics & Compliance

Quick guide to the EU Whistleblower Directive

Use this guide to learn how the new EU Whistleblower Directive will be enforced, who is subject to it, and how to comply with it.

April 20, 2022

Learn more

Infographic

Ethics & Compliance

Infographic: The impact of an effective helpline on speak-up culture

Download this infographic and learn how an effective helpline is key to building a speak-up culture. 

April 08, 2022

Learn more

Interactive Tool

Ethics & Compliance

A simple conflict of interest disclosure form template

Download and customize this conflict of interest disclosure template to begin collecting voluntary disclosures at your organization.

April 05, 2022

Learn more

Webinar

Third-Party Due Diligence

7 best practices for conducting third-party due diligence for ethics & compliance

Watch this webinar and learn the seven best practices for third-party due diligence. 

January 03, 2022

Learn more

Webinar

Privacy & Data Governance

Data breach vs. ethics breach: How to prepare for both

In this webinar, we review case studies and tips from recent breaches and analyze which situations qualify as an "ethics breach."

July 07, 2021

Learn more

eBook

Ethics & Compliance

Creating an effective code of conduct

In this eBook, learn how to create an effective code of conduct with six key steps. 

June 01, 2002

Learn more