If there are reasonable grounds to believe that the whistleblower’s information is true at the time of reporting and the information falls within the scope of the WB Directive, Member States must protect against potential retaliation the persons who correctly internally or externally reported or publicly disclosed such information.
Thus all legal entities must refrain from any kind of retaliation prompted by (internal or external) reporting actions or a public disclosure if the latter is compliant with the WB Directive.
Retaliation is broadly defined as “any direct or indirect act or omission which occurs in a work-related context, is prompted by internal or external reporting or by public disclosure, and which causes or may cause unjustified detriment to the reporting person”.
More specifically, the following are prohibited:
- Suspension, lay-off, dismissal or equivalent measures;
- Demotion or withholding promotion;
- Transfer of duties, change of location of work, reduction in wages;
- Withholding of training;
- Discrimination;
- Coercion, intimidation, harassment.
Not only the whistleblowers themselves must be protected, but also the facilitators, colleagues, and relatives of the whistleblower or companies owned by them or for whom the whistleblower currently works.
The core of the protection against retaliation lies in the reversed burden of proof. From the moment that a person can demonstrate that (i) he/she disclosed information (by internal or external reporting or by public disclosure) and that (ii) he/she encountered any act of retaliation, the burden of proof shifts to the natural or legal person responsible for that act or retaliation. Hence, it is for the later to demonstrate justifiable grounds.
