Whistleblowing Law Report 2015

Second Edition
A study by DLA Piper’s Employment Group
Whistleblowing
An employer’s guide to global compliance
CONTENTS
Foreword 03
A summary across five continents 04
Law and sanctions 05
The legislative framework: Whistleblower protections 10

across the globe
Global differences: The cultural context 35
Whistleblowing hotlines 41
Implementing a global approach 45
At a glance: Protection ratings across the globe 49
Our Global Employment Team 50
Contact us 52
02 | Whistleblowing – An employer’s guide to global compliance

FOREWORD
The high profile media attention which whistleblowing has attracted across the
world in recent times has underlined its relevance to all organizations across
the globe. The revelations made by Edward Snowden continue to make their
mark, the Chinese authorities have announced that protection of whistleblowers
will be prioritised in an ongoing crackdown on corruption and, on the other side
of the Pacific, the US Securities and Exchange Commission has recently made its
highest ever award to a whistleblower of more than USD 30 million.
Tim Marshall
Global Co-Chair Every business and every public body risks inadequate systems or corruption
Employment Group leading to dangerous or criminal behavior. Where such risks arise, usually the
T +44 (0)20 7796 6617 first people to suspect will be those who work in, or with, the organization.
tim.marshall@dlapiper.com Whistleblowers have consequently been instrumental in revealing serious
corruption and fraud in organizations and preventing mistakes from leading to
disasters. However, employers face a delicate balancing act in responding to the
potential for whistleblowing in their organization.
Over 30 countries have now adopted some form of specific whistleblower
protection, with countries such as Denmark and Republic of Ireland having
introduced protection in the very recent past. However, legal protection for
whistleblowers varies significantly in its scope and effect. Regulated industries in
Michael J. Sheehan certain sectors may face additional layers of legislation. In this report we have
Global Co-Chair selected a representative sample of countries across the globe to highlight
Employment Group the variations in whistleblower protection and the challenges which this
T +1 312 368 7024 presents to global employers seeking to minimize the risks to their business.
michael.sheehan@dlapiper.com In The legislative framework: Whistleblower protections across
the globe we provide a summary of the key legislative provisions regulating
whistleblowing in the selected countries. In Global differences: The
cultural context we examine the reasons for some of the key differences
between the legal regimes. In Whistleblowing hotlines we explore the
restrictions placed by many jurisdictions on the use of US-style corporate
compliance hotlines. Finally, in Implementing a global approach we look at
how the global differences give rise to challenges for multi-national employers
in implementing effective whistleblowing policies and procedures and provide
some checklists to assist employers in dealing with those challenges.
The key theme emerging from our report is that global employers need
to take a global approach to manage whistleblowing effectively. Multi-national
companies need to be aware of the sharp contrasts in culture between
jurisdictions so that they can tailor their approach to whistleblowing to
meet the demands of their global business. The cultural differences are often
embedded in history meaning that imposing universal policies and procedures
is unlikely to succeed in effective management of the issue. Investing in a
bespoke approach will reap many rewards, not least enabling businesses
to be aware of concerns at the earliest opportunity so that malpractices
can be addressed in the most appropriate way. It will also help to ensure
the workforce stays onside and works towards a common goal of building
the business for the future.
www.dlapiper.com | 03
A SUMMARY ACROSS
FIVE CONTINENTS
Whistleblower protection regimes
Little or no protection  Some protection through general laws  Express protection 
Hong South
US UK Germany France Netherlands* Japan China Australia* Canada
Kong Africa
Overall
protection           
rating
Express laws   x x x x     
General
dismissal x          
laws
Protection
against     x      
retaliation
External
reporting  x x x x x x   x 
encouraged
Internal
reporting    x x x x x   
encouraged
Consultation
on
whistleblowing x x   x x x x x x x
procedures
required
Board/
management
investigation  x x x x x  x x x 
of disclosures
required
Government/
regulatory
incentives to  x x x x x x  x x x
disclose
* Jurisdictions where new whistleblowing laws have been proposed.
LAW AND SANCTIONS
Legal protection for whistleblowers has

two major aspects (1) a proactive attempt
to change culture (2) a series of protections
and incentives1
1
Banisar, 2006: Whistleblowing: International Standards and Developments, Transparency International
Striking a balance
The reporting of wrongdoing discovered in the
workplace is a complex area in which there is a delicate
balance to be struck between a variety of competing The retaliation that whistleblowers
interests. have suffered has caused individuals
Whistleblowing has an important role to play in society as psychological problems and financial
a means of reducing corruption and fraud and preventing
mistakes leading to disasters. These were the triggers
hardship due to dismissal and long-
for legislation in, for example, the US and the UK. lasting legal proceedings against the
In the US, the main driver was a series of well-publicized government or companies. In a few
instances of corporate misconduct whilst in the UK
important catalysts included public inquiries into a series
cases whistleblowers have received
of corporate collapses and public disasters, including the financial compensation for the
collapse of the BCCI bank and the sinking of the Herald damage suffered. However, in most
of Free Enterprise. A 2013 report by the European
Environment Agency “Late Lessons from Early Warnings” cases the social problem was tackled,
highlights the vital role played by whistleblowing scientists while the whistleblowers were
who raised the alarm about potential harm to public
health from emerging technologies.
abandoned to their fate.
However, balanced against this is the need for employers
not to have business interests hampered by malicious
or unfounded allegations or by the risk of confidential Individuals are more likely to speak out, however, if they
business information being disclosed unnecessarily to can be confident that their report will be acted on, that
competitors, regulators or the press. they will be protected against retaliation and that their
employer is serious about weeding out corruption and
At an individual level, wrongdoing at work presents
mismanagement.
a serious dilemma to the employee who discovers it.
Employees are often the first to find out, or suspect, that Governments and organizations around the globe are
something is wrong, but any prospective whistleblower increasingly accepting the crucial role of whistleblowing in
will, of course, pause to weigh the personal risks against uncovering and deterring secret or unaddressed wrongdoing
the public interest in raising the alarm. Retaliation and in increasing accountability and strengthening the fight
could ultimately result in the whistleblower losing their against corruption and mismanagement. A number of
livelihood and there is often little to be gained personally jurisdictions have recently taken action to strengthen the
from blowing the whistle. legal protection for whistleblowers, including Denmark and
the Republic of Ireland. The potential benefits for society
A new law proposed in the Netherlands is in reaction
at large are clear, but whistleblowing can also be a means of
to recognition of the harm which can be caused by
improving the internal organizational culture of operations
inadequate protection for whistleblowers. Dutch
in both the public and private sector.
whistleblowers have reported fraud and misconduct in
a variety of workplaces including safety issues at nuclear However, different jurisdictions have taken different
power plants, misconduct at employment reintegration approaches to striking the balance between competing
companies, fraud and price-fixing schemes in the interests and, as a result, legal protection for
construction industry and substandard grenades being whistleblowers varies widely around the world. Although
supplied to the military, and have encountered damaging many countries have now adopted some form of specific
retaliation as a result. Hélène Bogaard, from our whistleblower protection, such protection varies
Netherlands practice comments, considerably in scope and effect and there are significant

differences not only between, but also within, continents. follow such procedures will help to
In many countries, whistleblower protection is high up
on the legal and political agenda; while in others there
prevent employers from simply ignoring
has yet to be any express approach. What is clear, grievances raised by employees.
however, is that, where legal protection exists, it has
two major aspects (1) a proactive part which attempts
to change the culture of organizations by making it
acceptable to come forward, facilitating the disclosure In France, Germany, the Netherlands and Hong Kong
of information on negative activities in the organization there are, at present, no express whistleblowing laws and
such as corrupt practices and mismanagement, and to gain protection in these jurisdictions a whistleblower
(2) a second aspect consisting of a series of protections has to rely on piecemeal rights found in, for example,
and incentives for people to come forward without fear employment, anti-corruption and criminal laws.
of being sanctioned for their disclosures. In Europe, the UK leads the way with extensive
Japan, China, the UK, Canada and the US have protection for whistleblowers. The UK whistleblowing
comprehensive protection whereas, for now, in Australia, legal regime is widely regarded as one of the most
for example, the existence of express federal laws comprehensive in the world. Protection was first
protecting whistleblowers is limited. Similarly, in the UAE introduced in 1998 and reforms were introduced in 2013
there is little express protection for whistleblowers. to clarify the protection. Further proposals for reform
Whilst the UAE Labor Law provides that an employee were explored through a Call for Evidence in 2013. The
will be deemed to have been arbitrarily dismissed if government published its response in June 2014 and made
that employee’s employment is terminated due to them nine recommendations including issuing more guidance
having “submitted a serious complaint to the competent for individuals and creating a model whistleblowing policy
authorities”, the protection is limited to an arbitrary to be adopted by business. Tom Kerr Williams, from
dismissal claim which only attracts a maximum of our UK practice comments,
three months’ compensation. Further, it is unclear what
sort of complaints would constitute a “serious complaint”
and to whom such a complaint would need to be made.
In addition, this particular “protection” has not been
tested in the Labor courts. Neil Crossley, from our UAE
The UK legislative scheme is held
practice comments, up as providing good protection
to whistleblowers, and has been
adopted by several other countries.
Overall, there is no free-standing It continues to envolve with significant
statutory protection for whistleblowers reforms in 2013 and more planned on
in the UAE where there has been an ongoing basis in 2015.
no dismissal. However, multinational
companies operating in the region with
links to the UK or the US are likely In contrast to the UK, in the other European countries
to have their own internal procedures considered in our report, express whistleblowing
protection has yet to be introduced. France and
arising out of overseas legislation and Germany share common ground in their lack of
their own internal requirements to specific whistleblowing legislation. A German bill on
protection of whistleblowers was rejected by Parliament when reviewing their national laws or when introducing
in 2013. However, in both countries, laws which protect legislation or making amendments. However, it remains
employees from dismissal without cause do offer to be seen what impact the Recommendation will have in
whistleblowers some general protection. In France, practice.
protection is also derived from data protection laws.
The Asia Pacific region follows a similar pattern
Express legislative protection for whistleblowers has to Europe with some countries engaging fully with
been proposed in the Netherlands. Hélène Bogaard, whistleblower protection, while other countries have
partner, Amsterdam comments, yet to follow suit. Japan and China are at the forefront
of whistleblower protection in the region with express
legislative provisions outlawing detrimental treatment
of workers who blow the whistle. Hong Kong, however,
does not offer any statutory protection. According to
Recent whistleblowers have suffered Julia Gorham, from our Asia practice,
psychological and financial damage.
This has led to a situation where
people have become reluctant to The Hong Kong market prides
disclose wrongdoing. This legislative itself on anti-corruption and good
proposal aims to improve the governance in all respects so perhaps
conditions for whistleblowing by this will change in the future.
allowing abuses to be investigated,
while whistleblowers are better
protected. In Australia, protection is available, but only through
a series of general laws. Andrew Ball, from our
Australia practice says,
Although it may eventually come into being, movement

towards a Europe wide approach to whistleblowing is
extremely slow. In 2010, the Parliamentary Assembly
hilst the most recent legislative
W
of the Council of Europe passed a resolution on the protection for whistleblowers
protection of whistleblowers and, in December 2012,
under the Public Interest Disclosure
a study on the feasibility of a European legal instrument
on the protection of whistleblowers, which had been Act 2013 provides a comprehensive
commissioned by the Council of Europe, was published. protection regime, this applies to the
In April 2014, a Recommendation of the Committee
of Ministers on the protection of whistleblowers was Commonwealth public sector only.
adopted. It states that member states should have in Those in the private sector are only
place a normative, institutional and judicial framework to
protect individuals who, in the context of their work- afforded protection in a piecemeal
based relationship, report or disclose information on fashion under a variety of different laws.
threats or harm to the public interest. In this regard, it
sets out a series of principles to guide member states

The US offers comprehensive protection of comprehensively investigate reported malpractices and the
whistleblowers. Here, perhaps more than anywhere else government may implement draconian sanctions against
in the world, there is a robust approach incorporating a the wrongdoer. Rachel Cowen, from our US practice
positive attitude to reporting together with anonymity comments,
for those blowing the whistle. Employers are required to
The United States has a long history of protecting employees who report safety
or health hazards from discrimination or retaliation. Whistleblower protections
for employees in the financial sector began with the Corporate and Criminal Fraud
Accountability Act 2002 (Sarbanes-Oxley) as part of the government’s effort to
prevent further corporate and accounting scandals like those at Enron and WorldCom,
and similar whistleblower protections now are being included in most major US
legislation, like the Wall Street Reform and Consumer Protection Act 2010
(Dodd-Frank) and the Affordable Care Act.
In Africa, South Africa leads the way, by offering belief in the veracity of the disclosure, statutory
progressive and extensive protection for whistleblowers. protections will be forfeited. However, the benchmark
However, internal disclosure of corporate misconduct to qualify for whistleblowing protection is set fairly low,
must be made before protection for external disclosures to allow for protection even if the whistleblower may not
may be claimed, except in limited circumstances. have irrefutable proof of the truth of the disclosure.
This is to afford the business an opportunity to correct
In the section below, we provide a round-up of the
corporate misconduct before external disclosures may
legislative framework of whistleblower protections
follow. To the extent that a whistleblower’s disclosure is
across the world’s major continents.
not made internally first, or not based on a reasonable
The legislative
framework:
Whistleblower
protections across
the globe

Australia 
Whistleblowing laws in Australia are piecemeal; they

feature in various legislation and for distinct purposes.
Andrew Ball
Legislative protection affecting the State public sector and provides protection
for persons who make such disclosures from reprisals
In Australia, there is no single piece of legislation
in the workplace and against legal liability
which prevents employers dismissing or taking other
detrimental action against whistleblowers. However, ■■ The Fair Work Act 2009 which protects employees
whistleblowers do achieve a reasonable level of from retaliation by employers if they have exercised
protection through a range of statutes which apply in a “workplace right” (including making a complaint or
different situations. The main provisions are found in: inquiry in relation to their employment) and the
Fair Work (Registered Organizations) Act 2009,
■■ The Corporations Act 2001 which includes
which protects union members, employees and
provisions which protect company officers, employees
officers from retaliation, civil and criminal liability,
and contractors who make good faith disclosures
and defamation in relation to disclosures of breaches
about breaches of corporations legislation
of either Act.
■■ Occupational Health and Safety Acts in each
The Corporations Act is generally the most frequently
jurisdiction which prohibit retaliatory action against
used piece of legislation in relation to whistleblowing in
employees who raise issues or concerns about
the private sector.
workplace safety
■■ The Commonwealth Public Interest Disclosure Protected whistleblowers
Act 2013 which sets out procedures for making
Under the Corporations Act, a person is protected as a
disclosures about wrongdoing and maladministration
whistleblower if they are:
in the Commonwealth public sector and provides
protection for people who make disclosures from ■■ an officer of a company
reprisals in the workplace and against legal liability ■■ an employee of a company
■■ State and Territory legislation (variously called ■■ a person who has a contract for the supply of services
Protected Disclosure Act, Public Interest or goods to a company
Disclosure Act or Whistleblower Protection ■■ an employee of a person who has a contract for the
Act) which sets out procedures for making protected
supply of services or goods to a company.
disclosures about misconduct and maladministration
Protected disclosures
The Corporations Act prohibits retaliation against a
protected person connected to a company (including
an employee) where they, acting in good faith, disclose
information about a contravention of the corporations
legislation by the company itself, or one of its officers
or employees. The corporations legislation includes
the Corporations Act, the Australian Securities and
Investments Commission Act 2001, rules of court
made by the Federal Court because of a provision of
the Corporations Act and rules of court applied by
State Supreme Courts when exercising jurisdiction
conferred by the Corporations Act. The disclosure must
be made to the Australian Securities and Investments
Commission, the company’s auditors or officers, or
another such person authorised by the company to
receive such disclosures.
Under the Corporations Act, if a person makes a
disclosure that qualifies for protection:
■■ the person is not subject to any civil or criminal
liability for making the disclosure
■■ no contractual or other remedy may be enforced,
and no contractual or other right may be exercised,
against the person on the basis of the disclosure.
Liability for retaliation by co-workers

The Corporations Act makes victimisation of
whistleblowers who report breaches of corporations
legislation a crime, and provides criminal sanctions
against an entity or individual who takes reprisal action
against whistleblowers, including individuals.
Sanctions
Under the Corporations Act if an employee is victimised
for making a disclosure, the entity or individual who
contravenes the corporations legislation may face
penalties and be ordered to pay compensation.

WHISTLEBLOWING – CANADA 
While the Canadian Criminal Code provides some degree

of protection from reprisal for all Canadian employees
who engage in good faith whistleblowing, the most robust
protection arises in the public sector employment context.
Tamara Hunter
Legislative protection Private sector employees also enjoy whistleblower

protection pursuant to the Canada Labour Code
In Canada, private and public sector employees have
and pursuant to provincial employment standards
whistleblower protection through a federal Criminal
legislation in certain provinces.
Code provision which prohibits an employer from
taking disciplinary measures against, or otherwise The most robust protection for whistleblowers
adversely affecting the employment of, an employee in Canada arises in the public sector employment
who has provided information to law enforcement context. Specific public sector whistleblower
regarding an offence the employee believes has been protection applies both to the federal public service
or is being committed. (see: the federal Public Servants Disclosure Protection
Act) and to the provincial public service in numerous
Aside from the Criminal Code provision, there is
provinces. The protection for public service employee
also specific whistleblower provisions in various
whistleblowers is quite extensive and applies not just
statutes (some federal, but mostly provincial) relating
to reporting of offences, but also to reporting of acts
to particular subject areas such as human rights,
or omissions which create substantial danger to the
occupational health and safety, child pornography,
life, health, safety of persons, or to the environment
abuse/neglect of vulnerable persons, motor vehicle
and also extends to reporting of gross mismanagement
operation, health services, public enquiries,
of public funds or a public asset.
competition, environmental protection matters,
freedom of information and protection of privacy Public sector employers in many provinces must
matters. appoint a designated officer to receive and investigate
disclosures by public servants regarding wrongdoing.
The subject area-specific protection for
Public servants may also request advice from a
whistleblowers varies from province-to-province.
designated officer before making any disclosure. Public
servants in many provinces may make a complaint Public sector employees in Canada generally enjoy
to a commissioner or board alleging a reprisal has greater whistleblower protection than private sector
been taken against them as a result of whistleblowing, employees, given that public sector employees have
and a commissioner may find an employer guilty of a protection for reporting a broader category of
reprisal offence and order reprisal activity to cease, “wrongdoing” than employees in the private sector.
reinstatement and/or assess damages and/or a fine (the
Subject area-specific whistleblower protection
specific powers of a commissioner or board vary from
legislation in some instances provides protection
province to province).
to persons other than employees (for example,
The whistleblower protection in provincial securities the federal Personal Information Protection and
legislation is minimal, compared to the relatively Electronic Documents Act, the British Columbia
extensive whistleblower protection provided by the Personal Information Protection Act, the federal
USA Sarbanes-Oxley and Dodd-Frank legislation Quarantine Act, the Manitoba Public Health Act, the
relating to securities and financial matters. Having Ontario Regulated Health Professions Act, the federal
said that, the Ontario Securities Commission has Competition Act and others).
proposed an incentive program that would provide
whistleblowers up to CAD 1.5 million for information Protected disclosures
leading to significant enforcement or settlement Protected activities typically include reporting
orders. Further, the Investment Industry Regulatory concerns to appropriate authorities (e.g. an
Organization of Canada and the Mutual Fund Dealers environmental health officer, a food safety director,
Association of Canada each provide a service which a designated child/family agency, a motor vehicle
whistleblowers can access anonymously. registrar, a privacy commissioner, an occupational
health officer, or the Competition Commissioner)
Protected whistleblowers
initiating a proceeding under, or for the enforcement
All employees in Canada are protected by the Criminal of, any of the statutes with whistleblower protections,
Code prohibition against threatening or retaliating or causing such a proceeding to be initiated; testifying
against an employee whistleblower. Having said in any such proceeding; assisting or participating in any
that, the Criminal Code provision pertains only to such proceeding or in any other action.
situations where an employee provides information
It is an offence (for example, under the federal Public
to appropriate authorities respecting an offence the
Servants Disclosure Protection Act) for a person to
employee believes has been or is being committed.
knowingly make a false or misleading statement in a
Further, prosecution of an employer under the
disclosure of a wrongdoing or in the course of any
Criminal Code will not itself provide any monetary
investigation.
compensation to an employee who may have lost their
job due to whistleblowing.

Liability for retaliation Breach of the offence provisions of the Canada
by co-workers Labour Code by an employer may result in a fine up to
CAD1,000,000 or imprisonment for up to two years,
Prohibited reprisals under many subject area-specific
if the Crown proceeds by way of indictment, and to a
statutes include harassment as well as dismissal,
fine of up to CAD100,000 if the Crown proceeds by
suspension, demotion or discipline; accordingly,
way of summary conviction.
co-workers as well as employers may be liable
for retaliation. The prohibition of reprisals is also Fines may also be imposed for breach of the “no
often worded as “no person shall…”. Accordingly, retaliation/discrimination” provisions of other federal
co-workers are potentially caught by the offence statutes such as the Canadian Human Rights Act, the
provisions of many subject area-specific statutes in Quarantine Act, and the Pest Control Products Act.
Canada relating to whistleblowing.
Subject area-specific legislation, such as the federal
Further, some provincial occupational health legislation Competition Act, the British Columbia Personal
specifically prohibits an employer, a union or a “person Information Protection Act, the federal Quarantine
acting on behalf of an employer or union” from Act, the Manitoba Public Health Act, the Ontario
retaliating against a whistleblower. Regulated Health Professions Act etc. provide a range
of possible sanctions, including fines (ranging from
The federal Criminal Code prohibition against
CAD10,000 to CAD250,000).
threatening or retaliating against a whistleblower
applies both to employers and to “persons acting on Sanctions (or remedies) available to public sector
behalf of an employer or in a position of authority in employees who successfully complain about
respect of an employer”. retaliation for whistleblowing include reinstatement
of employment or position, damages for lost wages,
Sanctions reimbursement of expenses, fines, and specific orders
Conviction of an employer under Canada’s federal (for example, an order that an employer cease reprisal
Criminal Code for threats or retaliation in response to activity). Under the federal Public Servants Disclosure
employee whistleblowing may result in imprisonment Protection Act, proven retaliation against a public
for a maximum of five years, if the Crown proceeds servant can result in imprisonment of up to two years.
by way of indictment (more serious situations), and to
a fine of CAD5000 or six months imprisonment if the
Crown proceeds by way of summary conviction (less
serious situations).
China 
China has realized the important role whistleblower protection

plays in the fight against corporate fraud and corruption.
Julia Gorham
Legislative protection whistle in relation to the fact of any crime or any

suspected criminal to a public security bureau or a
In China, there is specific legislative protection for
people’s court. At the same time, to prevent false
whistleblowers. This is contained in the Regulation on
accusations, an official will notify the complainant or
Labor Security Supervision (the Regulation) and Criminal
informant about the potential liability which exists where
Procedure Law of the PRC.
a false accusation is made.
The Regulation provides that any organization or
The Rules of the People’s Procuratorate on
individual is entitled to report to the Labor Security
Whistleblowing Work, which were amended in late
Administrative Department (the Department) of the
2014, provide more details about protection available for
local labor bureau any act which breaches the laws,
whistleblowers as well as their rights. These Rules aim
regulations and decrees. An employee who believes that
to encourage individuals to report illegal activities to the
his/her legal rights in connection with labor security are
Procuratorate.
infringed by the employer has a right to file a complaint
to the Department. The Department must keep this In addition, the Basic Standard of Enterprise Internal
confidential for the whistleblower and even reward Control applies to listed companies. This stipulates that
him/her where major evidence of a material breach an enterprise is required to establish whistleblowing
proves to be authentic. and whistleblower protection mechanisms, set up a
whistleblowing hotline and specify whistleblowing handling
The Regulation provides protection from an employer
procedures, time limits and requirements.
retaliating against a whistleblowing employee. In cases of
retaliation, the Department will require the employer to Protected whistleblowers
take rectification action but there are no fines or other
The Regulation encourages any individual or organization
administrative penalties. Further, pursuant to China labor
to report violations but is mainly aimed at protecting
laws, any dismissal must be based on legal grounds.
employees who work for an employer. The PRC Criminal
Any termination of employment without legal grounds is
Procedure Law entitles anyone or any unit to file a
considered illegal and the employer must compensate the
complaint about the fact of any crime or suspects of any
employee and reinstate their employment.
nature, including workers, employees and ex-employees.
Compared with the Regulation, which only addresses
illegal acts in the work domain, the Criminal Procedure
Law of the PRC encourages individuals to blow the
Protected disclosures
The disclosures and/or actions which are protected
under the Regulation and the PRC Criminal Procedure
Law include:
■ disclosure of an employer’s violation of labor security
related laws, regulations and rules
■ disclosure of crimes or suspects to the public security
authority, people’s procuratorate or people’s court.

A retaliator can be held personally liable for their actions
if they have infringed the whistleblower’s rights under
civil law or criminal law, for example by causing bodily
injury or defamation.
There are no mandatory requirements in China making
the employer liable for retaliation by co-workers. It is at
the employer’s discretion to establish its own internal
policy to manage this.
Sanctions
If an employer retaliates against a whistleblower, the
labor security administration will order it to stop
the detrimental action against the whistleblower.
The employer may also potentially face a labor
arbitration.

France 
French authorities have until recently been

quite hostile towards whistleblowing systems.
Today, implementation of such systems is strictly
monitored by the French Data Protection
Authority and French Courts.
Bijan Eghbal
Legislative protection Whistleblowing procedures must be declared to the

CNIL prior to implementation in France. The purpose
In France, whistleblowing is regulated to a very limited
of the Single Authorization is to set detailed rules
extent by the Labor Code. This states that an individual
regarding the scope and operation of such procedures.
cannot be denied access to recruitment or training, or
Whistleblowing procedures that strictly comply with all
be dismissed or subjected to a discriminatory act for
the provisions of the Single Authorization are declared
having disclosed either to their employer, or to the
to the CNIL through a self-certification from the
judicial or administrative authorities, corruption-related
employer that the system complies with all the provisions
offences discovered in exercising their functions.
of the CNIL Single Authorization. Additionally, alert
Any such termination of contract or detrimental act is
systems must be subject to a specific procedure to be
null and void.
implemented within the company.
Whistleblowing procedures are also regulated
The Guidelines provide that a whistleblower cannot
by the French Data Protection Act and further
be subject to sanctions if they use in good faith an
recommendations and decisions of the French Data
authorized whistleblowing procedure, even if the facts
Protection Authority (CNIL) namely:
which they disclose are subsequently not borne out.
■■ Guidelines adopted by the CNIL on 10 November 2005
on the implementation of whistleblowing procedures
in compliance with the French Data Protection Act, The relevant provisions of the Labor Code apply to
relating to information technology, data filing systems candidates for employment, trainees, employees and
and liberties (the Guidelines) ex-employees.
■■ Single Authorization of whistleblowing systems Protected disclosures
adopted by the CNIL on 8 December 2005
Whistleblowers are protected when they report, in
(the Single Authorization).
good faith, a suspected infringement in the fields of
■■ The CNIL deliberation of 30 January 2014 expanding accounting, banking, financial audit, anti-corruption or
the scope of the Single Authorisation to other alert anti-competitive behavior. Since early 2014, these fields
systems.
have been expanded so that reports on harassment
and discrimination, health and safety and environmental
protection are also now covered. Whistleblowers are
encouraged to identify themselves and not to remain
anonymous.
According to the CNIL Guidelines, the collection and
handling of reports must be entrusted to a specifically
designated section within the company, or a third-party
provider, who must be specially trained and bound by a
contractual obligation of confidentiality. Since April 2014,
a specific section must be designated to report health
and safety and environment related matters and this
section must cooperate with the health and safety
committee.
Employers have a duty to protect the health and safety
of workers in the company, and in particular to protect
them from harassment. If there is evidence of harassment
at work, the employer can be held liable, even in the
absence of any fault on its part, for a failure to comply
with its health and safety obligations. If a co-worker puts
pressure on, or harasses, a whistleblower, the employer
must immediately take disciplinary action against the
harasser. Harassment of this type can justify the dismissal
of the harasser for serious misconduct (without notice
or a termination payment). The harasser may also face
criminal sanctions for the offence of “moral harassment”.
Offenders can now face up to two years’ imprisonment
and a €30,000 fine.
Sanctions
There is no specific sanction for breach of the
protection provided by the French Labor Code.
However, whistleblowers who have faced retaliation
for their actions could claim constructive dismissal or
apply to the court for “judicial resignation” of their
employment contract. This would entitle them to
termination indemnities as well as damages for unfair
dismissal (equivalent to at least the last six months’
salary for employees with at least two years’ service
with the company).

Germany 
It is fair to say that whistleblowing hotlines and

ombudsman systems are well established throughout
German companies regardless of their size which
shows the growing awareness of their central
importance for discovering compliance violations.
Michael Magotsch
Legislative protection reason for termination. Such whistleblowing may be

justified, however, if the employee is reporting a criminal
Germany does not have any specific legislation protecting
offence committed by the employer. Whether there is
whistleblowers from dismissal. A bill on the protection
a reason for termination in the specific case must be
of whistleblowers was rejected in 2013. Although
assessed on a case-by-case basis.
parliamentary opposition party Bündnis 90/Die Grünen
has brought in a new bill regarding the protection of
whistleblowers in November 2014, it is unlikely that the
bill will pass due to the lack of support of the coalition All employees with at least six months’ service, working
government. Whistleblowers are, however, protected by in a business of more than 10 employees, are protected
general employment laws under the Dismissal Protection by the KSchG.
Act (Kündigungsschutzgesetz – KSchG). Protected disclosures
The KSchG provides that employees may only be In the absence of express whistleblower legislation,
terminated ‘for reason’. Those reasons comprise, there are no specific provisions governing the nature of
in particular, conduct-related termination of the protected disclosures.
employment relationship and extraordinary terminations
for good cause such as, for example, a serious breach of Liability for retaliation by co-workers
contract. Blowing the whistle internally in relation to a
matter of legitimate concern would not generally be a Vicarious liability will only arise if, for example the
valid reason for termination of employment. However, employee has acted as a proxy for the employer or
blowing the whistle externally, without trying to resolve has acted tortuously, and the employer is not able to
the issue internally first, with the potential consequence exculpate himself by proving that he chose the employee
of damaging the employer’s reputation, may be a valid carefully. Employees who deliberately harm a colleague
who has blown the whistle can be personally liable
for their actions. Harm is caused when an employee
intentionally or negligently unlawfully injures the life,
body, health, freedom, property or another right of
another person. In these circumstances the employee
may be liable to pay compensation to the other party in
respect of the damage arising from the harm.
Sanctions
In the event that an employer terminates a
whistleblower’s employment without valid reason, the
employer must continue to employ the employee under
the same conditions as before, or might in some cases be
ordered to make a severance payment in order to end
the employment.

Hong Kong 
There have been steps in the right direction, with, for example,
Hong Kong Exchanges and Clearing stating that all listed companies
should implement a whistleblowing policy to enable people to raise
concerns of suspected malpractice. However, as a major business
hub, Hong Kong lags behind other jurisdictions.
Julia Gorham
Legislative protection Further, an employee who discloses confidential

information may be exempt or protected against
There is currently no statutory legislation offering
allegations of breaches of confidentiality in the following
protection for whistleblowers in Hong Kong.
circumstances:
Protected whistleblowers ■ if under common law it is in the public interest to do so
There are no protected categories of workers due to ■ if the disclosure is made according to official
the absence of legislation governing whistleblowing. directives, for example, a court order, or under the
directive of a statutory inspector or the Independent
Protected disclosures Commission Against Corruption (ICAC)
Although there is no legislation specifically protecting ■ if the disclosure is made under a statute. For example:
whistleblowers, an employee who gives evidence or – d
isclosure of suspected money laundering or other
information in any proceedings or inquiry in connection crimes under the Organized and Serious Crimes
with the enforcement of labor legislation, industrial Ordinance (OSCO), the Drug Trafficking (Recovery
accidents or breach of work safety regulations is of Proceeds) Ordinance (DTROP), and the United
protected from dismissal under the Employment Nations (Anti-Terrorism) Ordinance (UNATMO)
Ordinance. is not to be treated as a breach of restrictions
imposed by contract, enactment, rule of conduct or
other provision
– d
isclosure of corruption and bribery conduct
in both the public and private sector under the
Prevention of Bribery Ordinance (POBO) and
Banking Ordinance (BO).
Under OSCO and DTROP, when an employee knows

or has reasonable grounds to believe that any property
constitutes “proceeds of an indictable offence” or
drug trafficking, they are required to report this fact
to a Hong Kong police officer or member of the
Hong Kong Customs & Excise Department. In practice,
the employee should report their knowledge or suspicion
to the Joint Financial Intelligence Unit.

An employer has a general duty to provide a safe place
of work for all employees. However, there are no specific
regulations which make an employer liable for the
actions of one employee towards another. An individual
employee may be personally liable for any detrimental
actions towards a co-worker under tort, criminal or
anti-discrimination laws for example, However, there is
no specific liability imposed on an individual in relation to
retaliation against a whistleblower.
Sanctions
There are no sanctions specifically relating to detrimental
treatment of whistleblowers.

Japan 
As the relationship between employers and employees

continues to evolve based on practices put in place
by global businesses, one increasingly sees employers
in Japan providing hotlines for whistleblowers and
instances where historically reticent employees are
willing to use them to report claims of wrongdoing.
Lance Miller
Legislative protection competition and the protection of citizen’s lives, bodies,

property and other interests. Whistleblowers must,
Japan has implemented specific legislation for the
however, make efforts not to damage the “justifiable
protection of whistleblowers in the workplace.
interests of others and the public interest”.
The relevant legislation is the Whistleblower
Protection Act (WPA). A worker must make the disclosure to the employer, an
administrative body or a third party. If the worker makes
Protected whistleblowers the disclosure to the employer, the worker is protected
The WPA protects workers who are broadly defined as if they believed they were reporting a reportable fact.
persons who are employed at an enterprise or office and If the worker makes the disclosure to an administrative
receive wages without regard to the kind of occupation. body the worker is protected if they had reasonable
Temporary and part-time workers are also protected grounds to believe they were reporting a reportable fact.
as are certain government and public employees. If the employee makes the disclosure to a third party the
worker is protected if they had reasonable grounds to
Protected disclosures believe they were reporting a reportable fact and:
The WPA protects workers who disclose ‘reportable ■ the worker has reasonable grounds to believe
facts’. This term includes criminal acts under specific laws that they will be dismissed or subject to other
identified in the WPA. There is also a catch-all provision disadvantageous action if they make their disclosure
which encompasses any other laws provided for in a to the employer or administrative body
cabinet order as legislation concerning the protection
■ the worker has reasonable grounds to believe that
of interests such as the protection of individuals’ lives
evidence supporting the reportable fact might be
and bodies, the protection of consumer interests, the
concealed, counterfeited, or altered if they report it
conservation of the environment, the protection of fair
to the employer
■ the worker was requested by the employer, without
any justifiable reason, not to report the reportable
fact to the employer or administrative body
■ the worker does not receive notice from the employer
regarding the commencement of an investigation into
the reportable fact within 20 days from the day they
made the report in writing or the employer does not
investigate without any justifiable reason or
■ the worker has a justifiable reason to believe that
some damage to the life or body of an individual has
been caused or is about to be caused.
No incentives to encourage whistleblowing internally or

externally are provided by the WPA.

In terms of retaliation by co-workers, the
whistleblower’s remedy lies in bringing an action in
tort against any colleague who has bullied or harassed
them. The employer could be liable for “power
harassment” or retaliation undertaken by another
employee or director.
Sanctions
The WPA provides that a termination or detrimental
employment action based on protected whistleblowing is
a nullity. However, employers are not subject to criminal
liability or fines under the WPA.

Netherlands 
Whistleblowing is currently a hot topic in the Netherlands,

with a legislative proposal to be adopted by the House of
Representatives. Once adopted, a Whistleblowers’ Centre
will be established, which will investigate misconduct and
provide support for the whistleblower.
Hélène Bogaard
Legislative protection Protected whistleblowers

A legislative proposal on whistleblowing is currently If enacted, the new law will apply to employees and
progressing through the Dutch parliamentary system. ex-employees from both the public and the private sector.
The proposal, known as the “Bill on a House for
Whistleblowers”, would improve protection against Protected disclosures
detriment and dismissal for individuals who report According to the legislative proposal and case law,
wrongdoing that poses a serious threat to public health, disclosures are protected if the suspicions are based
security or the environment. The legislation would also on reasonable grounds, the public interest is seriously
establish an independent government institution to at risk and disclosures are handled with due care.
investigate wrongdoing. It remains uncertain when this Regarding handling with due care, a distinction can be
legislation will come into force meaning that, for the drawn between formal (procedural) due care (internal
time being, Dutch law has no legal provisions protecting disclosure first) and material (substantive) due care
whistleblowers, although some regulations have certain (there is an abuse with serious risk to the public
requirements concerning whistleblowing policies. For interest). Whistleblowing is defined as the disclosure to
companies with a separate whistleblowing policy, the the community by an employee without the employer’s
“Statement on dealing with suspicions of misconduct permission of a specific, immediate or threatened abuse
in companies” (Statement) and the example procedure which occurs in the company where the employee works
published by the Foundation of Labor (Stichting van de and which conflicts with the public interest. According
Arbeid, “STAR”) are the most important regulations. The to case law, disclosure must be made internally to
Statement lists the basic components of a whistleblowing a supervisor or any other competent official within
procedure. In respect of civil servants in the public sector, the organization. Disclosures can be made public if
the Act on Civil Servants provides how to deal with internal disclosure is pointless, if it cannot reasonably
suspicions of abuse and malpractice. be required, or if it is contrary to the public interest.
The new law will create a new organization, called the
Whistleblowers’ Centre, which will fall under the office
of the National Ombudsman and will be empowered to
investigate cases. As soon as an employee is officially
recognized as a whistleblower, they will be protected
from dismissal.

The employer is obliged to make efforts to prevent
employees harassing other employees and can be liable
for damages where there is bullying and intimidation.
Sanctions
Under current Dutch law, the termination of an
employment contract is voidable if there are any
termination prohibitions (e.g. during illness or pregnancy)
or if no dismissal permit is obtained from the Employee
Insurance Agency. The cantonal court can also refuse the
request for termination of the employment agreement
or award higher severance pay. If the court finds that the
dismissal is manifestly unreasonable the employer can be
ordered to pay compensation for damages.

South Africa 
South Africa, having come out of an era of darkness,

has joined the international community in promoting
openness and accountability.
Aadil Patel
Legislative protection They have to be alert to their actions being

The whistleblowing framework in South Africa has monitored and reported on to shareholders and
developed over time and includes constitutional the public. Everyone is alive to their loyalty to
provisions, the Protected Disclosures Act 2000 (PDA),
the Labor Relations Act (LRA), the Companies Act the organization. As a safe alternative to silence,
2008 (CA) and a body of case law. South Africa has whistleblowing deters abuse. Whistleblowing is
specific legislative protection for whistleblowers in the neither self-serving nor socially reprehensible.
workplace, similar to the legislation in place in the UK.
Employees who disclose information in a prescribed
manner regarding criminal, unlawful or irregular
conduct in the workplace are protected from any Protected whistleblowers
form of occupational detriment (such as victimization/ Protection under the PDA and LRA is limited to paid
retaliation) under the PDA. Aadil Patel, Head of employees only, excluding independent contractors and
Employment Law at DLA Cliffe Dekker Hofmeyr volunteers. The CA however extends whistleblowing
in Johannesburg comments, protection to (amongst others) suppliers of goods or
services to the company, which may then include all types
of personal services, irrespective of the classification as
employee or independent contractor.
South African whistleblowing laws have been
captured eloquently by an eminent Labor Protected disclosures
Court judge who stated, “Internationally, there Whether or not a disclosure is protected depends on
the subject matter of the disclosure, the nature of the
is growing recognition that whistleblowers information disclosed, the disclosure procedure followed
need protection. Whistleblowing is healthy and the person or agency to whom the disclosure
for organizations. Managers no longer have is made. Only disclosures which relate to specific
categories of information are covered by the legislation.
a monopolistic control over information.
A disclosure is defined by the PDA as any disclosure of as the board of directors, plus legal representatives,
information regarding any conduct of an employer or and to the extent that the person making the disclosure
employee of the employer made by an employee who has reasonably believed at the time of disclosure that the
reason to believe that the information concerned shows information showed or tended to show that a company,
or tends to show that one of following categories of director or prescribed officer acting in that capacity
wrongdoing has occurred, is occurring, or is likely to occur: had – (1) contravened the CA; (2) failed or was failing
to comply with any statutory obligation to which the
■ A criminal offence
company was subject; (3) engaged in conduct that had
■ Failure to comply with any legal obligation endangered or was likely to endanger the health or
■ Miscarriage of justice safety of any individual, or had harmed or was likely
■ Danger to the health and safety of any individual to harm the environment; (4) unfairly discriminated,
or condoned unfair discrimination against any person; or
■ Damage to the environment
(5) contravened any other legislation.
■ Unfair discrimination in terms of the Promotion of Equality
and Prevention of Unfair Discriminations Act 2000 Liability for retaliation by co-workers
■ The deliberate concealing of information about any of Employees are protected against occupational detriment
the above. committed either by the employer or by another
Disclosures under the PDA are protected if they are employee of the organization. The employer will
made to the following list of recipients: attract liability for the actions of co-workers if it fails to
protect the employee from an occupational detriment in
■ A legal adviser, in the course of obtaining legal advice
consequence of a protected disclosure.
■ An employer substantially in accordance with any
prescribed procedure Sanctions
■ A member of Cabinet or of the Executive Council of
Dismissal of a whistleblower is categorized as
a province about an individual, body or organ of state
automatically unfair and may attract the maximum
appointed by or falling in the area of responsibility
punitive sanction allowed against the employer
of that member
under the LRA. In addition, the CA provides that the
■ The Public Protector, the Auditor-General or a whistleblower (which may include an employee) is
person or body prescribed by regulation. entitled to compensation from “another person” (which
Disclosure to any other person is only protected if in turn may include either the company or an individual
it is made in good faith, founded on information the acting in the capacity of director or prescribed officer
whistleblower believes to be substantially true, it is not of the company) for any damages suffered pursuant to
made for personal financial gain and the employee has a protected disclosure as understood in the CA, to
reason to believe that he or she would be subjected to an the extent that the person from whom damages are
occupational detriment and evidence would be concealed claimed – (1) engaged in conduct with the intent to cause
or destroyed if disclosure was made to the employer. detriment, and causes such detriment to the claimant;
The good faith requirement does not apply to disclosure or (2) threatens any detriment to the claimant, with the
made to a legal adviser in order to obtain legal advice. intent to cause the claimant to fear that the threat will be
carried out (or is reckless as to causing such fear). In the
Disclosure of information will be protected under the
latter case, it is irrelevant whether the claimant actually
CA if made in good faith to the prescribed bodies,
feared that the threat would be carried out.
which include the regulatory bodies established in terms
of the CA, as well as internal company structures such

UK 
Whistleblowing is currently riding high on the political

agenda with recent reforms to the law and further
review underway.
Alan Chalmers
Legislative protection of the worker, be made in the public interest and tend to
show that one of following categories of wrongdoing has
The UK has specific legislative protection for
occurred, is occurring, or is likely to occur:
whistleblowers in the workplace. This is provided
through the Employment Rights Act 1996 (ERA) ■ A criminal offence
(which has incorporated the Public Interest Disclosure ■ Breach of any legal obligation (which can include an
Act 1998). The ERA has recently been amended by obligation contained in a contract of employment)
the Enterprise and Regulatory Reform Act 2013.
■ Miscarriage of justice
Other reforms have been the subject of consultation and
the resulting recommendations will be implemented on ■ Danger to the health and safety of any individual
an ongoing basis. ■ Damage to the environment
As the law stands, it is unlawful for an employer to ■ The deliberate concealing of information about any of
subject a worker to a detriment because they have made the above.
a protected disclosure. The legislation encourages internal disclosure to an
employer or other responsible person as the primary
Protected whistleblowers method of whistleblowing. Disclosure to an employer, or
Protected workers include agency workers, freelance to another person who the employee reasonably believes
workers, seconded workers, homeworkers, contractors is responsible for the alleged wrongdoing (such as a
working in the NHS and trainees, as well as employees supplier), will usually be protected without more.
and former employees. This also applies to disclosures made by a process
authorized by the employer, such as a confidential
Protected disclosures whistleblowing hotline.
Only disclosures which relate to specific categories External disclosures are protected in more limited
of information are covered by the legislation. circumstances. Disclosures to prescribed persons will be
The information disclosed must, in the reasonable belief protected provided the worker believes the information
is substantially true and concerns a matter within that
person’s area of responsibility. Prescribed persons are
a list of persons approved by the UK Government to
whom workers can make disclosures which includes Sanctions
the tax authorities, the Health and Safety Executive,
Dismissal of an employee on the grounds they have
the Office of Fair Trading and other regulatory bodies.
made a protected disclosure is automatically unfair.
Wider disclosure to a third party such as the police The employee does not have to have any period
or the media is only protected if the worker believes of qualifying service in order to bring a claim and
the information is substantially true and the disclosure compensation is potentially unlimited. Interim relief is
is not made for personal gain. Unless the matter is available in certain circumstances where the employee is
“exceptionally serious”, the worker must have already ‘likely’ to succeed with their claim. A successful interim
disclosed it to the employer or a prescribed person, or relief action may result in the tribunal ordering that the
believe that, if they do, evidence would be destroyed employee’s contract of employment continues until the
or they would suffer reprisals. final determination of the complaint.
Wider disclosure must also be reasonable, in light of such
Avoiding criminal liability
factors as:
UK criminal legislation also highlights the importance of
■ The identity of the person to whom disclosure is made
whistleblowing provisions. The Bribery Act 2010, which
■ The seriousness of the default came into force in July 2011, contains a strict liability
■ Whether the default is continuing or is likely to occur corporate offence that applies where an organization
in the future fails to prevent bribery by a person “associated” with
■ Whether the disclosure was made in breach of a duty of it, including employees, agents, subcontractors. The
confidentiality owed by the employer to a third party organization has a defence if it can show that it had in
place “adequate procedures” designed to prevent bribery.
■ If previous disclosure has been made to the employer
Guidance from the Ministry of Justice stresses that this
or a prescribed person, whether any action was taken
would include having effective whistleblowing procedures
or might reasonably have been taken as a result of the
that encourage the reporting of bribery.
previous disclosure
■ If previous disclosure has been made to the
employer, whether the worker has complied with any
whistleblowing procedure operated by the employer
■ Any relevant circumstances of the whistleblower.
A worker does not have to prove that the facts or
allegations disclosed are true, or that they are capable in
law of amounting to one of the categories of wrongdoing
listed in the legislation.

Express vicarious liability for a worker who subjects a
whistleblower to a detriment has been in force since
June 2013 and the employer has a defense if it took all
reasonable steps to prevent the detrimental treatment.
Individual employees can be personally liable for any
detrimental actions towards a co-worker.

US 
The concept of employee whistleblower protections has

a long history in the United States, and those protections
and incentives for whistleblowing will continue to expand.
Rachel Cowen
Legislative protection demoted, suspended, etc) because they have exercised any
right afforded to them under one of the laws that protect
There are many United States federal statutes that prohibit
whistleblowers.
employers in the private sector from retaliating against
whistleblowers, many of which are sector or industry
specific. For example, the Occupational Safety and Health
Act 1970 protects those who have reported or complained All of the statutes with whistleblower provisions protect
about workplace safety and health issues, the Corporate and employees of companies covered by the applicable statute,
Criminal Fraud Accountability Act 2002 (Sarbanes-Oxley), and some statutes also cover employees of contractors
as expanded by the Wall Street Reform and Consumer and subcontractors who work for the covered company.
Protection Act 2010 (Dodd-Frank), protects securities law For example, Sarbanes-Oxley protects employees of
related whistleblowers, and the Affordable Care Act protects certain publicly traded companies and companies with
those blowing the whistle on issues related to healthcare certain reporting requirements with the Securities and
reform. Most of these laws are enforced/administered by the Exchange Commission (SEC), as well as their contractors,
Department of Labor (DOL) or the Occupational Safety and subcontractors, and agents, including employees of privately
Health Agency (OSHA). held contractors who perform work for public companies.
There are also federal statutes of general application that Protected disclosures
protect those who report fraud on the government or
complain about violations of federal anti-discrimination laws, Protected activities typically include initiating a proceeding
federal statutes that specifically apply to protect public sector under, or for the enforcement of, any of the statutes with
employees and subcontractors, and statutes and common law whistleblower protections, or causing such a proceeding to
protections at the state level. be initiated; testifying in any such proceeding; assisting or
participating in any such proceeding or in any other action
As a general matter, employees may not be fired or to carry out the purposes of those statutes; complaining
subject to any other unfavorable job action (disciplined, about a violation. By way of example, Sarbanes-Oxley
transferred, denied a raise or benefits, hours reduced,
protects covered employees who report alleged violations Sanctions
of the federal mail, wire, bank, or securities fraud statutes,
Upon receipt of a timely complaint, OSHA notifies the
any rule or regulation of the SEC, or any other provision of
employer, and if conciliation fails, conducts an investigation.
federal law relating to fraud against shareholders.
Complaints without merit will be dismissed. Where OSHA
Any employee who believes they have been discriminated finds a complaint has merit it will either be referred to the
or retaliated against in violation of the statutes DOL Office of Solicitor for legal action or OSHA will issue
administered by OSHA must file a complaint with OSHA a determination letter requiring the employer to pay back
within the statutorily defined time period (that complaint wages, reinstate the employee, reimburse the employee
is itself protected activity). If OSHA has not issued a final for attorney’s fees and litigation costs, and other steps to
decision within a statutorily defined time period, and there provide necessary relief. Some statutes allow for additional
is no showing that there has been delay due to the bad damages, such as Dodd-Frank, which provides for
faith of the employee, the employee may file an action increased back pay awards and a percentage of the money
in federal court. If OSHA does issue a final decision, recouped by the government for the reporting (see below).
the matter may be appealed to a federal appellate court.
Employers may challenge OSHA’s determinations by
Most of the statutes administered by OSHA specifically requesting a hearing before an Administrative Law
protect an employee’s complaints to not only the applicable Judge, whose decisions are subject to review by DOL’s
federal agency but also to the employee’s employer, and it is Administrative Review Board, and can then ultimately be
the DOL’s position that employees who express concerns challenged in the federal courts.
internally to their employers are protected under all of the
Under Sarbanes-Oxley, there are also criminal penalties,
statutes administered by OSHA. For example, Sarbanes-
including a fine or ten years’ imprisonment (or both), for
Oxley expressly allows, although it does not require,
retaliation against a whistleblower who made a report to a
complaints to the SEC. Unlike claims under Sarbanes-Oxley,
law enforcement agency concerning the commission of any
however, the Dodd-Frank Act excludes protection against
federal offence.
retaliation for internal reporting (i.e., an employee must
report potential securities law violations to the SEC to be
entitled to whistleblower protections). Under all of those
laws, except for the Dodd-Frank Act which creates a private
right of action in federal district court for an individual who
alleges discharge or other discrimination in violation of its
prohibition against retaliation, complaints of discrimination
or retaliation for engaging in whistleblowing are to be
reported to OSHA.

An employer has vicarious liability for retaliation by a
co-worker. An individual employee may be personally liable
under Sarbanes-Oxley if they are both materially involved
with the retaliation effort and in a position to modify the
terms and conditions of employment of the whistleblower.

GLOBAL DIFFERENCES:
THE CULTURAL context
Governments and organizations around the

globe are increasingly accepting the crucial role of
whistleblowing in uncovering and deterring secret
or unaddressed wrongdoing and in increasing
accountability and strengthening the fight against
corruption and mismanagement.
As highlighted in Law and sanctions there is significant One of the reasons for the slow development of
global variation in the extent to which different whistleblower protection laws in Europe, as compared
jurisdictions have developed their national laws to with the US, is the vast difference in legal culture in the
provide whistleblowing reporting channels, to ensure protection of employees from unfair termination of their
reports are followed up, to protect whistleblowers employment. In the US, the ‘at will’ model of employment
against retaliation and to strengthen accountability. dominates and employees have little protection against the
termination of their employment. Most European countries,
Whistleblowing has many different aspects; it can
in contrast, have a ‘for cause’ model of employment rights,
be seen as an act of free speech, a tool in the fight
such that an employee can only be terminated with good
against corruption, and an internal dispute mechanism.
reason. This provides some protection for whistleblowers in
Different jurisdictions have highlighted different aspects
that internal disclosures at least will seldom justify dismissal.
in their definition of whistleblowing for the purposes
External disclosure is, however, more problematic as it may
of whistleblower protection, informed by different
involve disclosure of confidential information which is likely
underlying ideas of whistleblowing and the role it has
to be considered to be serious misconduct.
to play in society. There is a strong cultural element
which influences how different jurisdictions respond The position in the UK is slightly different to the rest of
to whistleblowers. In the US, real-life whistleblowers continental Europe in that compensation rates for unfair
have been championed in big-budget Hollywood films dismissal are generally low. However, this is not the case
such as The Informant! and The Insider as crusaders who for whistleblowing claims. Based on available information,
fight corruption for the benefit of all. The US legislative the average compensation awarded for a whistleblowing
framework for whistleblowing reflects a similar attitude. claim in the first ten years post implementation of the
However, this view of corporate whistleblowing, and, legislation was £113,000. This is significantly more than
in particular, methods for ensuring that corporate the average compensation for unfair dismissal which in
wrongdoing comes to light, is not universal. 2013/2014 stood at approximately £11,800. In the UK,
the number of whistleblowing claims in the tribunal
Bijan Eghbal, from our French practice comments,
system has been increasing steadily year on year from
157 claims in 1999 to over 2,000 annually in recent years.
Alan Chalmers, from our UK practice says,
Whistleblowing is not common practice

in France and is mostly relevant to
In the UK, whistleblowing legislation
multi-national groups which are subject
aims to facilitate genuine whistleblowing
to Sarbanes-Oxley.
claims while reducing tactical claims
made for an employee’s own purposes.
However, despite the apparent strength of protection in The key risks to employers are
the US, potential whistleblowers nonetheless place not the potential damage to reputation
only their reputation, but also their employment, at risk
if the information they disclose does not fall within the through adverse publicity and the risk of
ambit of the law’s protection. high compensation awards.

Another reason for the lack of rigorous whistleblower who assists the CFTC in a judicial or administrative action
protection in many countries is a cultural hostility resulting in sanctions exceeding USD 1 million is entitled
towards whistleblowing, particularly anonymous to a monetary award of no less than 10% and no more
whistleblowing. This can be attributed in some than 30% of the monetary sanction in the collected action.
countries towards an emphasis on the importance of The rewards for whistleblowing to the SEC regarding
privacy, and in others to historical factors leading to violations of the Securities and Exchange Act are the same.
distrust of ‘informers’. In countries such as Germany Whistleblowers under Sarbanes-Oxley, as expanded by
and France, a stigma remains attached to anonymous Dodd-Frank, may also recover double back pay awards.
informing and a mistrust of anyone who could be Rachel Cowen comments that,
considered to be an informant. The European emphasis
generally is on protection of personal data, due process
and a presumption of innocence for those whom a
whistleblower accuses of wrongdoing, which does not Providing financial incentives for
sit well with US-led use of whistleblowing hotlines
and anonymity. Many other countries limit what can
whistleblowers remains controversial
be reported beyond local management or local law in the United States, but follows a
enforcement agencies, are suspicious of hotlines and
anonymity as leading to malicious and unfounded
150+ year history of individuals who
accusations, require “proportionality” balancing the file lawsuits claiming fraud by federal
scope of the investigation against the seriousness of contractors against the government
the violation and limit collection and transmittance
of personally identifiable information used in the under the False Claims Act (also
investigation. known as qui tam lawsuits) receiving a
These significant cultural differences could lead portion (usually about 15-25 percent)
multi-national companies to underestimate the
significant compliance hurdles to implementing of any recovered damages.
uniform whistleblowing procedures across their global
organization.
These cultural factors have influenced notable variations
Despite the controversy, in 2014 approximately
of approach around the globe particularly in relation to
3,600 tips were made to the SEC, with nearly 12% of
specific aspects of whistleblowing law:
these coming from outside the US. This may suggest
■ Attitudes to financial incentives for whistleblowers that the potential for reward is leading employees to
■ Positive obligations to report wrongdoing make external disclosures first, rather than addressing
■ Confidentiality and settlement of claims their concerns internally. In 2014, the SEC announced its
highest award yet of USD 30 million to a whistleblower
Financial incentives who provided key original information which led to a
successful SEC enforcement action.
The idea of financial incentives derives from the US’s
approach to the financial sector where, under Dodd- Offering financial incentives to employees to blow
Frank, a whistleblower who provides original information the whistle is not a device which is used commonly in
to the Commodity Futures Trading Commission (CFTC) other countries. There are no such incentives in the
regarding violations of the Commodity Exchange Act or
Netherlands, France, Japan, Australia, Hong Kong Obligations to report wrongdoing
or Germany. Indeed, in relation to Germany, The US whistleblowing regime includes limited duties
Michael Magotsch, from our German practice on individuals to report the wrongdoing of others.
comments, For example, Sarbanes-Oxley mandated the creation of
new rules of professional conduct requiring attorneys
who appear, or practice before, the SEC to make reports
Offering financial incentives for of evidence of unlawful activity to the public company’s
chief legal counsel, chief executive officer, or board
employees to blow the whistle would
of directors. Many US Codes of Conduct make it an
be seen critically in Germany as they employee’s obligation to report violations, and impose
might lead to denunciation of other discipline for failure to report.
employees. In contrast, in the other countries considered in our
report only Germany, the Netherlands, the UK, Canada
and China have any provisions about the reporting of
Based on the existing position in the US, the UK others’ wrongdoing and they are generally limited. In the
Government recently sought views on whether a UK, although there isn’t a general duty on employees to
system of financial incentives for whistleblowers should report wrongdoing either internally or externally, it has
be implemented. Although this approach was favored been established via case law that employees who are in
by the head of the UK Financial Conduct Authority, a “fiduciary” position are required to report both their
which regulates financial institutions in the UK, the own and the wrongdoing of others within the employer’s
Government ultimately decided not to progress this type organization. In Germany, if an employee becomes aware
of scheme as part of the UK’s whistleblowing framework. of any criminal offence by another employee which is
Therefore under UK legislation, the only “incentive” related to the employment relationship, they have a
remains the possibility for a participating offender to be contractual secondary obligation to inform the employer.
given a reduction in prison sentence or immunity from A failure to make such a report could result in dismissal.
prosecution principally under the Serious Organized Employees are also obliged to inform their employer
Crime and Police Act 2005. It remains to be seen to about imminent damage resulting from wrongful behavior
what extent financial incentives are taken up elsewhere, of employees. However, this obligation only arises
for example in Canada where the Ontario Securities where there is a substantial threat or risk of damage.
Commission has proposed an incentive programme that In the Netherlands, civil servants have an obligation to
would allow for awards of up to CAD 1.5 million for disclose any misconduct such as corruption and fraud.
information leading to significant enforcement orders. All citizens have an obligation to disclose serious crimes
involving imminent moral danger. Apart from these
In China, legislation provides that if the whistleblowing is
legal obligations, the disclosure of misconduct can be
true, the labor security administration will offer
interpreted as a moral duty.
financial incentives to the whistleblower who has
provided important clues or evidence for investigating There are some provincial statutes in Canada which
material violations of labor security laws, regulations require specific occupational health and safety matters
or rules. In anti-corruption and anti-bribery cases, the to be reported by workers; the initial obligation is
anti-corruption bureau, an internal organization in for the worker to report the matter to his or her
the people’s procuratorate, may offer financial incentives supervisor/employer, but in some situations further
to encourage whistleblowing.

reporting to authorities is required if the situation is not Confidentiality and settlement of
remedied by the employer. The Canadian Environmental claims
Protection Act also contains mandatory reporting
Attitudes to whistleblowers in general are reflected in
requirements in certain instances (e.g. release of certain
the approach which different jurisdictions take to the
toxic substances), as do certain provincial public health
importance of ensuring public scrutiny of whistleblowing
statutes (e.g. public health hazards, communicable
issues. Countries which have specific legal protection
diseases). General obligations to report child
for whistleblowers tend to limit the extent to which
pornography, abuse in care facilities and a child in need of
employers can avoid genuine malpractice coming to light
protection will also apply in some employment contexts,
by enforcing confidentiality and allowing confidential
and specific obligations to report certain breaches of
settlement of retaliation claims.
professional ethics exist for some professional employees
(e.g. a lawyer’s obligation to report a shortage of trust In the US, employers are not permitted to implement
monies or the breach of an undertaking to the Law contractual restrictions on whistleblowing and, in
Society). fact, since the passage of Dodd-Frank, Sarbanes-
Oxley claims are exempt from mandatory arbitration
In the Asia-Pacific region, China leads the way in this
agreements, although all other employment related
area with Article 108 of the PRC Criminal Procedure
claims may be subject to arbitration. To settle a
Law providing that anybody or individual, discovering
Sarbanes-Oxley whistleblower case, the parties to
suspected criminal behavior or a wanted criminal
the agreement must obtain the written approval of
suspect, has the right and obligation to report the case
the DOL. Settlement agreements cannot be entered
or provide information to the public security authority,
into unless they are fully reviewed by the DOL and
people’s procuratorate or people’s court. In Hong Kong,
the DOL finds that their terms are in the public
Japan and Australia there are no rules obliging employees
interest and are fair, adequate, and reasonable.
to report wrongdoing.
Rachel Cowen comments that,
South African whistleblowers enjoy extensive
protections, both under general employment legislation
and in terms of custom legislation. However, employees
who become aware of malfeasance, whether relating
Such requirements are not atypical in
to employer conduct or that of other employees may the US and DOL or court approval
well be subject to a duty to disclose this knowledge,
failing which they too may suffer adverse consequences. also are required for the settlement of
For instance, legislation places an obligation on certain other types of employment law claims.
individuals such as managers and directors of companies
to report corrupt activities to the South African
police, failing which they will themselves be guilty of a
This is an aspect of the law on whistleblowing which
criminal offence. Furthermore, failure to disclose the
has caused great controversy in the UK. It is possible to
misconduct of other employees may result in disciplinary
reach a confidential settlement of a claim for dismissal
steps (which may include dismissal) against employees
or detriment brought under the UK whistleblowing
innocent of the misconduct, under a so-called “derivative
legislation and in fact the majority of claims settle
misconduct”, or breach of the duty of good faith, charge.
without a tribunal hearing. However, the inclusion of a be null and void. In Germany, there is a general legal
“gagging” clause in any settlement agreement preventing obligation on employees to not disclose the employer’s
the whistleblower from raising their concerns publicly business secrets. This obligation may be extended by the
is likely to be void under provisions which prevent employment contract to all facts of which the employee
contracting out of the whistleblowing legislation. receives knowledge during his employment so long as the
employer is able to prove a legitimate interest in such
Some public sector provincial statutes in Canada allow
extended confidentiality obligations.
the authority (e.g. Integrity Commissioner) to whom
a report of wrongdoing was made by an employee, to In Australia, employers are able to settle whistleblowing
exercise discretion to release a public report concerning claims before legal proceedings are commenced. Leave of
the matter where the authority is of the opinion that it the court must be obtained to settle proceedings after
is in the public interest that a public report be made (for they are commenced. Under the Fair Work Act adverse
example, the Public Service of Ontario Act). action proceedings, claims may be settled. The system
includes a mandatory conciliation process prior to
Public scrutiny of whistleblowing issues is far less of
hearing. In Japan, the parties can settle claims provided
a hot issue in the rest of Continental Europe. In the
legal provisions governing the validity and enforceability
Netherlands, provisions on confidentiality can be
of settlements agreements are complied with.
contractually agreed under the Criminal Code, and
violation of a confidentiality obligation imposed by In deciding and implementing a global approach to
the employer is punishable, but not if the employee whistleblowing, it is important for multi-national
assumed in good faith that the public interest required employers not only to be aware of the differing laws in the
the disclosure. In Germany, France and the Netherlands, jurisdictions in which they operate but also to be sensitive
the parties can settle claims provided legal provisions to the array of cultural attitudes which exist towards
governing the validity and enforceability of settlements whistleblowing across the globe. This is particularly
agreements are complied with. In France, as in the important in relation to the implementation of a
UK, any sort of gagging clause, however, is likely to whistleblowing hotline which we consider in detail below.

WHISTLEBLOWING
HOTLINES
Corporate compliance hotlines

(whistleblowing hotlines) allow
employees to report their concerns
anonymously about possible
violations of corporate rules by their
co-workers.
When implementing a global code of ethics or compliance however, is for US-listed multi-national companies to
which deals with whistleblowing, multi-national employers adopt corporate compliance hotlines not only in the US,
often have to deal with complex legal issues regarding where the obligation arises, but also for their operations
hotlines. Originally a US phenomenon, whistleblowing in other countries. This is not as easy as it may sound,
hotlines have proved more controversial in Europe. however, as following a series of court cases in France
Corporate compliance or whistleblowing hotlines and Sweden, the legality of whistleblowing hotlines has
established to comply with Sarbanes-Oxley allow increasingly been called into question largely on the
employees to report their concerns confidentially and basis that they contravene European data protection
anonymously, by telephone or e-mail, about possible regulations. Both the courts and data protection
violations of corporate rules by their co-workers. From regulators of certain European countries have resisted
the would-be whistleblower’s perspective, the benefits of the introduction of such hotlines.
being able to report corporate malpractice anonymously
Ute Krudewagen, from our US practice
are self-evident. However, anonymous reporting poses
comments,
significant problems for employers in investigating those
reports and taking appropriate action.
The US influence
Hotlines of this type have largely come about in response Getting a global whistleblowing
to the provisions of Sarbanes-Oxley in the US. Under hotline wrong can have significant
Sarbanes-Oxley, all companies listed on US stock
exchanges are required to adopt a code of ethics for consequences. Not only may the
senior financial officers. The listing rules of NASDAQ company have violated data privacy
and the NYSE require listed companies to have codes of
conduct applicable to officers, directors and employees
and employment laws (which can be
to ensure legal and regulatory compliance and to report criminal in some jurisdictions), but it
illegal or unethical behavior. Sarbanes-Oxley also may not be possible to use evidence
specifically requires implementation of procedures (or
hotlines) for the reporting of questionable accounting
collected through the hotline against
or auditing matters and requires that the anonymity of the employee, along the lines of the
an employee who makes a report should be maintained. “fruit of the poisonous tree” concept.
Hotlines and mandatory reporting rules are now “best
practice” in the US, although Sarbanes-Oxley does not Some companies have been ordered
specifically require employers to force employees to to reinstate employees who claimed
report on fellow co-workers or managers.
unlawful dismissal in local courts since
It remains unclear whether the foreign subsidiaries or
branch offices of US-listed companies need to comply
the employer could not rely on the
with these requirements of Sarbanes-Oxley by publishing evidence that came to light through an
or making their hotline number available to overseas overreaching hotline.
employees. There is limited case law on this issue
and the law that does exist is in conflict. The norm,

Whistleblower hotlines have not been particularly dealing with the investigation of matters raised through
controversial in Canada. Some private sector employers whistleblowing by public sector employees, and these
provide hotline services for employees to report procedures sometimes include hotlines, but there is not
concerns, but this is neither mandatory nor specifically regularity to this. The Investment Industry Regulatory
regulated. Some legislation pertaining to public sector Organization of Canada and the Mutual Fund Dealers
employees requires public bodies to adopt procedures for Association of Canada provide whistleblower hotlines.
Limitations on hotlines
The limits placed on whistleblowing hotlines tend to fall ■ Limits on who can use the hotline or be reported via

into four categories: the hotline

■ Restrictions against hotlines accepting anonymous
■ Hotline registration requirements.

reports
A summary of the restrictions placed on whistleblowing
■ Limits on the types of wrongdoing about which
hotlines in the countries covered in this report is set
hotlines can accept reports out below.
Whistleblowing hotlines
Hong South
US UK Germany France Netherlands* Japan China Australia* Canada
Kong Africa
Level of hotline
restriction           
Must be
confined to x x   x x x x x x x
certain topics?
Proportionality
required?
x x    x x x x x x
Anonymous
calls         x x 
permitted?
Notify/register
with DPA**
x x x   x x x x x x
* But discouraged/not encouraged.
** Data Protection Authority
Hotline solutions The “rest of the world hotline” would be US best
practice compliant whereas the European hotline would
Emerging regulatory guidance and case law across
take account of the constraints identified above.
the globe has forced many multi-national companies,
which had initially implemented robust Sarbanes-Oxley Implementing hotlines which are tailored for each jurisdiction’s
compliant reporting hotlines, to revisit their procedures individual restrictions
with a view to achieving global compliance. However, as
Under this strategy it would be possible to have a US and
these employers have discovered, observance of not only
“rest of the world” hotline which fulfills US best practice
European data protection legislation but also other laws/
but this would be complemented by separate policies, based
corporate policies mandating the use of whistleblowing
on the US standard but tailored for all the more restrictive
hotlines can be challenging to achieve.
European jurisdictions. This approach avoids the need for
Possible strategies to adopt include the following – a watered down approach across the entire world and
rather than treating European restrictions as uniform across
Using one worldwide hotline that complies with both
the continent allows for degrees of differentiation. This
European and Sarbanes-Oxley obligations
strategy would, however, produce a somewhat disordered
While this approach is an achievable one, the hotline assortment of procedures around the globe which many
would need to comply with European constraints multi-nationals may find objectionable. However, in the
which include – last few years providers have developed software systems
■ Limiting reportable offences to, for example, that attempt to streamline such an approach, with drop-
accounting, auditing and related matters down menus and “traffic cop” like procedures that direct
reports that extend beyond the specific country’s permitted
■ Discouraging anonymity and encouraging named, reporting topics back to local management and only let
confidential reports through the global hotline those reports that are within the
■ Respecting the rights of any person incriminated by a confines of required topics of reporting by Sarbanes-Oxley
report including personal data rights or such other topics that such jurisdiction perceives to be
permissible for global reporting.
■ Respecting the existence of “alternative reporting
channels” such as local or European works councils, Adopting the view that foreign subsidiaries or branch offices
trade union representatives or ombudsmen of US-listed companies do not need to comply with the
requirements of Sarbanes-Oxley and, on this basis, do not
■ Complying with EU privacy laws which restrict the
implement hotline reporting in Europe
transfer of data outside Europe
Given the uncertainty over the territorial reach of
■ E xcluding the requirement for mandatory reporting
Sarbanes-Oxley this is a potentially risky strategy which
by employees
is also unlikely to be an attractive option for a multi-
■ Ensuring internal investigations are based on a national employer given the current corporate culture of
presumption of innocence and follow due process best-practice in regulatory compliance.
■ Complying with local rules requiring notification or A global company must decide whether it can tolerate
approval of hotlines. some “regionalization” to address jurisdictional differences
in its hotline procedures or whether it is preferable to
Because of these limitations, this approach is likely to
dramatically streamline its code to produce a limited but
be unacceptable to most multi-national corporations for
uniformly acceptable hotline. The implementation of any
although it achieves strict legal compliance, the resulting
solution, however, requires a proper understanding of
hotline would not reach US standards of best practice.
local laws and implementation of strategy which works
Using two hotlines – one for Europe and one for the rest of both at global and, importantly, local level.
the world

IMPLEMENTING
A GLOBAL APPROACH
Given the different cultural and

legal approaches to whistleblowing
across the globe, multi-national
employers must ensure they tailor
their policies according to their
global footprint.
Why have a robust whistleblowing time observe applicable local law particularly in relation
process? to data protection and privacy. However, comprehensive
■ Good business and risk management and good and well-drafted policies provide an opportunity for
corporate governance employers to set our clear rules about how employees
may express their concerns about malpractices in
■ Deter malpractice and avoid wrong-doing thus the workplace. Given the different cultural and legal
maintaining or improving performance approaches to whistleblowing across the globe,
■ To protect staff, customers and the public multi-national employers must ensure they tailor their
policies according to their global footprint. They will
■ To meet the expectations of regulators need to understand and embrace the different regimes
■ By encouraging employees to raise matters internally, to ensure that the policy is fit for purpose, and carry
it avoids the potential for external disclosure out appropriate training of staff so that the workforce is
educated in respect of its rights and obligations. In doing
■ It can reduce financial losses
this, employers will be able to have confidence that they
■ Letting employees know that wrong-doing will not be are minimizing litigation risks and potential threats to
tolerated can improve staff morale reputation.
■ Demonstrating a commitment to good governance In order for whistleblower provisions to function
is likely to enhance the employer’s reputation and well employees must also be aware of both statutory
increase investor confidence protections and the variety of channels through
which disclosures or wrongdoing may be reported.
A well-drafted whistleblowing policy should help to
The protections must be sufficiently effective to
avoid expensive claims by picking up on disclosures
overcome employee reluctance to use them. It is also
at an early stage and dealing with them properly
vital that whistleblowing procedures are committed to,
and appropriately. A policy and prompt response to
and supported, at the highest level of the employer’s
disclosures may also limit the risk of notifications to
management structure. The organization’s culture and
regulators. Whistleblowing policies are required in
approach to whistleblowing forms the keystone of an
various jurisdictions either by legislation (as in the US) or
effective process. Procedures which promote integrity
by regulators (as in the UK, where the Financial Conduct
and transparency, and demonstrate a receptive, rather
Authority will expect regulated companies to have a
than hostile, stance to employees who ‘rock the boat’
policy). Policies also set clear standards of behavior for
will ensure genuine concerns can be raised through the
employees.
proper channels and should deter malpractice from
Companies operating in a global business environment occurring in the first place. Employers who simply pay ‘lip
with subsidiaries and operations across a large number service’ to proper processes for managing the disclosure
of jurisdictions face a daunting challenge. The global of workplace wrongdoings are likely to face employee
variation in levels of whistleblower protection can confusion leading to inappropriate disclosures to
lead to significant difficulties for multi-national inappropriate third parties… a situation which benefits
employers seeking to impose compliance guidelines and no-one. Employers must also keep the procedures under
whistleblowing reporting schemes which are effective review to ensure that they remain fit for purpose as the
and consistent across the organization but at the same business develops and moves forward.

Our checklists below will assist employers to focus on ■ Comply with any local obligations to notify or have
the key issues and to ensure that whistleblowing is raised the scheme checked by any national authority.
up their business agenda. Many countries have data protection laws which
limit the collection and use of information gathered
Implementing a whistleblowing policy through whistleblowing schemes. In some of these
and procedure jurisdictions, local data protection supervisory
Whistleblowing policies should encourage employees authorities will expect to be notified of and (in some
to speak out if they have legitimate concerns about cases) approve arrangements
wrongdoing as distinct from individual grievances, and ■ Take account of cultural sensitivities in relation to
establish an accessible process for doing so, whether as whistleblowing
a freestanding policy or as part of a more general code of
■ Train management on the operation and principles of
conduct. Consider the following:
the policy and encourage a culture of openness and
■ Identify where appropriate ownership of and transparency so that potential whistleblowers feel
responsibility for implementation of the policy confident that their concerns will be taken seriously
lies within the organization and set up the team
■ Provide training on the policy as part of induction
responsible for its management
training and at launch provide training on the policy
■ Ensure visible and active senior and board level across the entire organization
support
Content of a whistleblowing policy
■ Ensure good communication throughout the
organization about the policy and the reasons for it to A good whistleblowing policy should:
foster a culture of trust ■ Contain an introduction setting out the context,
■ Consider implementing a related code of ethics to purpose and the organization’s commitment to the
guide employees on right and wrong policy
■ Consider the use of appropriate and culturally ■ Describe the type of issues which the policy covers
sensitive language – for example, many organizations and any issues which are excluded, e.g. individual
have a “speak up” rather than a whistleblowing policy grievances, bullying and harassment (which may be
covered by a different procedure)
■ Consider including trade unions or employee
representatives in formation of the policy to ensure ■ Describe the categories of personnel who may report
their support. In certain jurisdictions, such as France or be reported
and Germany, implementation of a whistleblowing ■ Encourage early reporting
policy and procedure is subject to the prior
information and consultation of the works council ■ Set out the mechanism for raising a concern
so ensure that local requirements of this nature are (for example, initially to line manager and then to a
complied with helpline) and explain who will see any report
■ Consider whether anonymous reporting will be ■ Allow employees to bypass the person or part of the
permissible business to which the concern relates
■ Provide information to the employee about the Establish a protocol for calls made to a hotline
■
whistleblowing hotline e.g. is it run internally or by

Remember to document every step from the initial
■
an external provider and who within the business will
report to the conclusion of the case
have sight of reports generated
Investigate thoroughly to establish if the allegations
■
■ Address anonymity/confidentiality. To avoid the risk
are substantiated
of false or malicious allegations, make clear that in
such cases there is a risk of disciplinary action Ensure that the organization complies with the
■
commitments it has made in the policy on reporting

■ Make it clear that retaliation against anyone who
back to the employee
makes a whistleblowing report in good faith will not
be tolerated Consider communicating the outcome of any
■
investigated cases (in generic terms if necessary) to

■ Warn that the victimization of genuine whistleblowers
encourage confidence in the system
but also malicious allegations and other abuses of the
whistleblowing policy are disciplinary offences which Monitor use of and regularly review the policy
■
may, in appropriate cases, lead to dismissal

■ E xplain the rights of any reported person
■ E xplain what will happen on receipt of a report
including investigation timeframes, feedback and
confidentiality
The whistleblowing policy in

operation
■ Produce guidance for managers on how to deal with a
whistleblowing report, emphasizing the importance of
establishing and retaining legal privilege
■ If using a third party service provider to help operate
a hotline or analyze reports, ensure clear contractual
protections in place to protect the confidentiality
of reports received by the service provider and (in
the case of reports originating from Europe) control
the flow of data outside Europe to ensure consistency
with EU privacy laws

AT A GLANCE:
PROTECTION RATINGS
ACROSS THE GLOBE
EUROPE AFRICA
Austria  South Africa 
Belgium  ASIA-PACIFIC
France  Australia 
Germany  China 
Hungary  Hong Kong 
Italy  Japan 
Netherlands  South Korea 
Norway  India 
Poland 
Indonesia 
Spain  Malaysia 
Romania  Singapore 
Sweden  Thailand 
Turkey 
United Kingdom  MIDDLE EAST
UAE 
AMERICAS
Kingdom of Saudi Arabia 
Brazil  Qatar 
Canada  Bahrain 
Mexico  Kuwait 
US 
Our global
employment team
DLA Piper’s Employment group is a market-leading practice with whistleblowing expertise across the globe.
The map below shows our global footprint and lead contacts from the employment team.
Netherlands canada
Hélène Bogaard Richard Nixon
helene.bogaard@dlapiper.com richard.nixon@dlapiper.com
UK
Sandra Wallace
sandra.wallace@dlapiper.com
US
Michael J. Sheehan
michael.sheehan@dlapiper.com
DLA PIPER
DLA PIPER
AUSTRALIA BRAZIL CZECH HUNGARY NETHERLANDS SAUDI ARABIA UKRAINE
AUSTRALIA Brisbane
BRAZIL CZECH REPUBLICHUNGARY
São Paulo Budapest Amsterdam
NETHERLANDS RiyadhARABIA
SAUDI Kyiv
UKRAINE
Canberra Prague
Brisbane São Paulo CANADA REPUBLIC Budapest
ITALY Amsterdam
OMAN Riyadh
SINGAPORE Kyiv ARAB
UNITED
spain Canberra
Melbourne Calgary Prague FRANCE Milan Muscat
OMAN
Singapore
SINGAPORE
EMIRATES
Perth CANADA Edmonton Paris ITALY Rome UNITED
Abu DhabiARAB
Pilar Menor Melbourne SydneyCalgary MontrealFRANCE
GEORGIA
Milan POLAND
Muscat SLOVAK
Singapore
REPUBLIC
EMIRATES
Dubai
Perth JAPAN Warsaw
Edmonton Paris Rome Abu Dhabi
pilar.menor@dlapiper.com Sydney
AUSTRIA Toronto Tbilisi Tokyo POLAND
QATAR
SLOVAK
Bratislava UNITED
ViennaMontreal VancouverGEORGIA JAPAN KUWAIT Warsaw REPUBLIC Dubai
KINGDOM
GERMANY Doha SOUTH KOREA
AUSTRIA Toronto Whitehorse
BAHRAIN Tbilisi Berlin Tokyo Kuwait City QATAR Bratislava
Seoul Birmingham
UNITED
ROMANIA
Vienna Vancouver Yellowknife
Manama Cologne Edinburgh
KINGDOM
GERMANY KUWAITLUXEMBOURGDoha Bucharest SOUTH
SPAIN KOREA
Leeds
BAHRAIN Whitehorse
BELGIUM CHINA Frankfurt Madrid Birmingham
Berlin KuwaitLuxembourg
City RUSSIA
ROMANIA Seoul Liverpool
Manama YellowknifeBeijing
Antwerp Hamburg Edinburgh
Cologne Munich LUXEMBOURG
Hong Kong MEXICO Moscow
Bucharest THAILAND
SPAIN London
Brussels Leeds
BELGIUM CHINA ShanghaiFrankfurt Mexico City St. Petersburg Bangkok Manchester
Luxembourg RUSSIA Madrid
Antwerp Beijing Hamburg Liverpool
Sheffield
Hong Kong MEXICO Moscow THAILAND London
Brussels Munich
Shanghai Mexico City St. Petersburg Bangkok Manchester
Sheffield
BELGIUM
Eddy Lievens
eddy.lievens@dlapiper.com

NORWAY POLAND austria ITALY
Per Benonisen Agnieszka Lech- Stephan Nitzl Giampiero Falasca
per.benonisen@ man-Filipiak stephan.nitzl@ giampiero.falasca@dlapiper.com
dlapiper.com agnieszka.lechman- dlapiper.com
filipiak@dlapiper.com
romania
MIDDLE EAST Monica Georgiadis
Neil Crossley monica.georgiadis@dlapiper.com
neil.crossley@
dlapiper.com
Asia
Julia Gorham
julia.gorham@dlapiper.com
France
Philippe Danesi
philippe.danesi@dlapiper.com
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Phoenix
HERZEGOVINA
Accra Auckland Dar es Salaam Australia Germany
Austin Sacramento Sarajevo BOSNIA- GHANAWellington
NEW ZEALAND
Mwanza
TANZANIA
Atlantic City San Diego
Baltimore Raleigh BOTSWANA
HERZEGOVINA
INDONESIA
AccraNORWAY Auckland
TURKEY
Andrew
Dar es Salaam Ball Kai Bodenstedt
Austin
Boston Sacramento GaboroneSarajevo Jakarta
San Francisco Wellington Mwanza
Baltimore
Chicago SeattleSan Diego BURUNDIBOTSWANA IRELAND
INDONESIA
Oslo Ankara andrew.ball@ kai.bodenstedt@dlapiper.com
Dublin PORTUGAL NORWAY
Jakarta Istanbul TURKEY
Boston
Dallas Short San
Hills Francisco BujumburaGaborone
Lisbon OsloUGANDA Ankara dlapiper.com
Houston
Chicago SiliconSeattle
Valley CROATIABURUNDI KENYA IRELAND
LosDallas
Angeles TampaShort Hills Nairobi RWANDA
Dublin Kampala
PORTUGAL Istanbul
Zagreb Bujumbura
Miami Washington, DC Kigali VENEZUELA
Lisbon UGANDA
Houston Silicon Valley DENMARK CROATIA
MAURITIUS KENYA
Minneapolis Wilmington SOUTH AFRICA
Port Louis Nairobi Caracas Kampala
Los Angeles Tampa Copenhagen RWANDA
New York Zagreb
Miami Washington, DC EGYPT MOZAMBIQUE Cape Town KigaliZAMBIA VENEZUELA
MAURITIUS
Johannesburg Lusaka
Minneapolis Wilmington Cairo DENMARK Maputo Caracas
Copenhagen Port Louis SOUTH AFRICA
New York
EGYPT MOZAMBIQUE Cape Town ZAMBIA
Cairo Maputo Johannesburg Lusaka
South Africa
Aadil Patel
aadil.patel@dlacdh.com
Contact us
ABOUT DLA PIPER’S EMPLOYMENT GROUP
DLA Piper’s Employment group is a market-leading global practice with a strong reputation for delivering
solutions-based advice and supporting clients in the day-to-day management of their people legal issues and risk.
It includes over 300 specialist lawyers globally, on a strategic and operational level, on both contentious and
non-contentious matters across the public and private sectors. The group advises on all areas of employment,
including trade union and employee relations, discrimination and diversity management, global mobility and data
privacy. We also advise on the legal, tax and regulatory aspects of remuneration, employee share incentives and
other benefits, and we assist clients generally in designing and delivering their reward strategies.
DLA Piper has extensive experience of handling whistleblowing issues across the globe, from advising employers
on how to manage employee disclosures, to conducting investigations, to setting up whistleblowing hotlines.
Our team can advise multi-national companies on how to improve their organizations policies and procedures,
provide effective and appropriate ways for employees to voice their concerns, put in place effective management
procedures for handling allegations and, ultimately, minimise the risk of litigation.
Our Pensions lawyers cover every aspect of pension provision, including the creation, operation, regulation
and restructuring of all types of pension funds in the private and public sectors, as well as the management of
pension disputes.
We also have a specialist employment law training team called Advance, which delivers training on a commercial basis.
FOR ENQUIRIES REGARDING THE EMPLOYMENT GROUP PLEASE CONTACT
Ranjit Dhillon
Senior Marketing Manager
T +44 (0)121 262 5940
ranjit.dhillon@dlapiper.com
FOR FURTHER DETAILS ABOUT THIS STUDY PLEASE CONTACT

Tim Marshall Michael J. Sheehan
Global Co-Chair Global Co-Chair
T +44 (0)20 7796 6617 T +1 312 368 7024
tim.marshall@dlapiper.com michael.sheehan@dlapiper.com
For details of all our services or to obtain a copy of our training directory, visit www.dlapiper.com/global/employment.
@DLAPiperEmp
www.dlapiper.com
DLA Piper is a global law firm operating through various separate and distinct legal entities.
Further details of these entities can be found at www.dlapiper.com
Copyright © 2015 DLA Piper. All rights reserved. | MAY15 | 2910098

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Second Edition

A study by DLA Piper’s Employment Group

A summary across five continents 04

Law and sanctions 05

The legislative framework: Whistleblower protections 10

Global differences: The cultural context 35

Implementing a global approach 45

At a glance: Protection ratings across the globe 49

Our Global Employment Team 50

02 | Whistleblowing – An employer’s guide to global compliance

Legal protection for whistleblowers has

06 | Whistleblowing – An employer’s guide to global compliance

Although it may eventually come into being, movement

08 | Whistleblowing – An employer’s guide to global compliance

10 | Whistleblowing – An employer’s guide to global compliance

Whistleblowing laws in Australia are piecemeal; they

Liability for retaliation by co-workers

12 | Whistleblowing – An employer’s guide to global compliance

While the Canadian Criminal Code provides some degree

Legislative protection Private sector employees also enjoy whistleblower

14 | Whistleblowing – An employer’s guide to global compliance

China has realized the important role whistleblower protection

Legislative protection whistle in relation to the fact of any crime or any

Liability for retaliation by co-workers

18 | Whistleblowing – An employer’s guide to global compliance

French authorities have until recently been

Legislative protection Whistleblowing procedures must be declared to the

20 | Whistleblowing – An employer’s guide to global compliance

It is fair to say that whistleblowing hotlines and

Legislative protection reason for termination. Such whistleblowing may be

22 | Whistleblowing – An employer’s guide to global compliance

Legislative protection Further, an employee who discloses confidential

Under OSCO and DTROP, when an employee knows

Liability for retaliation by co-workers

24 | Whistleblowing – An employer’s guide to global compliance

As the relationship between employers and employees

Legislative protection competition and the protection of citizen’s lives, bodies,

No incentives to encourage whistleblowing internally or

Liability for retaliation by co-workers

26 | Whistleblowing – An employer’s guide to global compliance

Whistleblowing is currently a hot topic in the Netherlands,

Legislative protection Protected whistleblowers

Liability for retaliation by co-workers

28 | Whistleblowing – An employer’s guide to global compliance

South Africa, having come out of an era of darkness,

Legislative protection They have to be alert to their actions being

30 | Whistleblowing – An employer’s guide to global compliance

Whistleblowing is currently riding high on the political

Liability for retaliation by co-workers

32 | Whistleblowing – An employer’s guide to global compliance

The concept of employee whistleblower protections has

Liability for retaliation by co-workers

34 | Whistleblowing – An employer’s guide to global compliance

Governments and organizations around the

Whistleblowing is not common practice

36 | Whistleblowing – An employer’s guide to global compliance

38 | Whistleblowing – An employer’s guide to global compliance

40 | Whistleblowing – An employer’s guide to global compliance

Corporate compliance hotlines

42 | Whistleblowing – An employer’s guide to global compliance