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European Court of Human Rights and Labour Court of Brussels grant protection to whistle-blowers beyond the EU legal framework

The EU Whistleblowing Directive and the implementing Belgian Whistleblowing Act (FR/NL) have generally been hailed as innovative and big steps towards protecting whistle-blowers (for more information, see our previous alert).

Yet, recent decisions of the European Court of Human Rights (“ECtHR”) and a decision of the French-speaking Labour Court of Brussels confirm that employees can be protected after blowing the whistle, even when their reports would normally fall outside the scope of the EU Whistleblowing Directive and/or the Belgian Whistleblowing Act.

Case law of the ECtHR on whistle-blowers in the public sector

The ECtHR had already settled case law prior to 2019 when the EU Whistleblowing Directive came into force. Whistle-blowers in the public sector are protected under the freedom of expression right in Article 10 of the European Convention on Human Rights (“ECHR”).

As early as 2008, the ECtHR ruled (and then later confirmed on multiple occasions) that the right to freedom of expression, which protects both information, ideas and opinions as well as means for their communication, entails right to report wrongdoings in the workplace in general. Whistle-blowers in the public sector may only not receive protection when this (i) is prescribed by law, (ii) has a legitimate aim and (iii) is necessary to achieve the legitimate aim while remaining proportionate to that aim.

Much of the assessment will therefore turn on whether the interference is proportionate. Throughout the years, the ECtHR developed six factors to determine this proportionality: 

1Disclosure has been made in the first instance to the whistle-blower’s superior or another competent authority
2Disclosed information is of public interest
3Disclosed information is authentic, accurate and reliable
4The interest of the public in having the information revealed outweigh the damage caused by the disclosure
5Whistle-blower had no personal motive for reporting
6Severity of the sanction imposed on the whistle-blower

Recent decision of the ECtHR involving the private sector

The majority of whistleblowing cases before the ECtHR related to public servants blowing the whistle on their administration.

On 14 February 2023, the ECtHR issued a new decision, confirming that a former employee of an audit, tax and consulting company who had disclosed confidential tax-related documents to the media, enjoys protection under the freedom of expression right.

The Luxemburgish courts found that the employee committed the offences of theft from his employer, fraudulent access to a data-processing or automated transmission system, breach of professional secrecy and laundering of the proceeds of theft from his employer. The employee was eventually convicted and condemned by the Luxemburgish courts to pay a fine of EUR 1,000.

The case was brought before the ECtHR, which first restated that employees have a duty of loyalty towards their employer but immediately emphasised that this duty is not absolute. The ECtHR then found that, “after weighing up all the interests concerned and taken account of the nature, severity and chilling effect of the applicant’s criminal conviction,” Article 10 of the ECHR was breached. The employee was eventually awarded EUR 15,000.

This matter related to facts which occurred prior to the entry into force of the EU Whistleblowing Directive. As such, the ECtHR decided that an employee should be protected as a whistle-blower even outside the scope of the EU Whistleblowing Directive.

Recent Labour Court case in Belgium

On 20 January 2023, the French-speaking Labour Court of Brussels issued a decision in relation to an employee who supervised an EU-funded project that was under an audit. Her employer appeared to have accepted the auditing company’s fees, even though they were higher than the planned budget, in exchange for a freeze of other general fees. The employee suspected that this could be a passive bribery to the detriment of the EU. After she reported her suspicions to her employer, she was first suspended during the investigation and then dismissed for serious cause (allegedly making false and slanderous accusations).

Again, although the EU Whistleblowing Directive had not yet entered into force and had not been implemented in Belgium and despite the fact that most provisions of the ECHR apply to Member States only (and not between private persons), the French-speaking Labour Court of Brussels found that the employee had a right to special protection under Article 10 of the ECHR as interpreted by the ECtHR. In other words, applying the ECtHR’s case-law, the French-speaking Labour Court of Brussels ruled that the dismissal by the employer was manifestly unreasonable and abusive.

As it was clear that her dismissal was connected with her whistleblowing, it was found unjustified and she received a severance indemnity as well as 17 weeks remuneration for manifestly unreasonable dismissal under collective bargaining agreement n° 19 plus an additional indemnity of EUR 5,000 for abuse of rights.

What does it mean for your business?

It follows from these recent decisions that employees can be protected for blowing the whistle even outside the scope of the EU Whistleblowing Directive and/or the Belgian Whistleblowing Act. More importantly, the special protection offered by the ECtHR is arguably broader in scope than the EU Whistleblowing Directive and/or the Belgian Whistleblowing Act.

Companies should therefore refrain from adopting a narrow approach to the EU and Belgian legislation. Instead, they should protect relevant employees against retaliation (e.g. take caution when suspending a whistle-blower in the context of an internal investigation, dismissing someone who raised suspicions internally, etc.).

Some practical steps to consider:

  • Ensure that your company has a clear whistleblowing policy, which outlines the procedures for reporting and investigating.
  • Consider whether the scope of your internal whistleblowing channel (if applicable) is appropriate. Some companies have decided for a narrow scope (i.e. limited to what is legally required). However, allowing employees to report any suspected wrongdoing through one channel can facilitate identification of potential whistle-blowers that could enjoy protection under the ECtHR framework (in addition to ensuring that all reports are logged and tracked in one central place, making it easier for companies to investigate any reports thoroughly and take appropriate action if necessary).
  • Deliver regular trainings to employees and managers on the whistleblowing routes in your companies – some companies which recently had set up internal whistleblowing channels have seen that employees continue to report outside the channel, for example through companies’ annual engagement surveys. This makes follow-up and identification of the protected whistle-blower more complicated.
  • When conducting an internal investigation, be aware that interviewed employees could become protected as whistle-blowers following their interview, even if they have not blown the whistle in the first place.
  • Finally, it is key to educate managers on the importance of protecting whistle-blowers and the many subtle forms of retaliation, including the potential risks.  

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