The Protection of the Whistleblower Act (hereinafter ‘Act’) was enacted with the aim of making it possible for employees to safely raise concerns of wrongdoing within their workplace. The Act safeguards those whistleblowers who disclose, in good faith, information on improper practice. Recently, the EU Whistleblowing Directive (hereinafter ‘Directive’) was brought into force on the 16th of December 2019 with an implementation period of two years meaning that Malta must implement the provisions of the Directive into its national legislation by December 2021. The Directive will require the Act’s scope to be significantly widened by obliging all employers who employ 50 or more employees to set up effective internal reporting channels which ensure confidentiality and also requiring national authorities to investigate designated to investigate reports to similarly set up channels enabling confidential reporting. Furthermore, protective measures under the Directive are afforded to third parties as discussed further on within this article as opposed to protective measures being limited solely to the whistleblower under the current Act.
In order for one to be able to safely raise such concerns of wrongdoing, the Act obliges the employer to have internal procedures in place with respect to both receiving and dealing with information regarding improper practice carried out within the workplace. This internal procedure must identify the person/s who have been assigned to carry out the role of whistleblowing reporting officer. Thus, any employee who wishes to disclose any concerning information may report directly to the said officer, who is bound to ensure complete confidentiality. Information about the internal procedures and substantial information on how to utilize such procedures must be brought to the attention of all individuals within the workplace so that one may utilize whenever they deem necessary.
A whistleblower is afforded protection if such disclosure is made in good faith. Thus, the law seeks to address when a disclosure constitutes a protected disclosure:
- When it is made in good faith; and
- If the whistleblower reasonably believes, at the time of making the disclosure, based on the information he has at the moment, that:
- the information disclosed tends to show an improper practice being committed by this employer, another employee, or by persons acting in the employer’s name and interests;
- the information disclosed, and any allegation contained in it, are substantially true; and
- The disclosure is not made for purposes of personal gain.
As aforementioned, protected disclosures may be made on improper practice.
Who is responsible for the formation of such internal procedure?
It has become evident that the notion of whistle blowing is also encroaching onto other areas such as employment law. This, for one, can be seen in the Second Schedule of the Act, which outlines the responsibility of the employers who are legally bound to put in place such internal procedures. These include the following:
- Government ministries;
- Organizations in the private sector which, according to their annual or consolidated accounts, meet at least two of the following criteria:
- an average number of employees, during the financial year, of more than 250;
- a total balance sheet exceeding forty-three million euro (EUR 43,000,00); and
- an annual turnover exceeding fifty million euro (EUR 50,000,000).
- Any voluntary organisation which annually raises more than five hundred thousand euro (EUR 500,000) from public collections and other donations.
The Directive, on the other hand, has widened the above-mentioned criteria and as a result, the Directive also obliges all private and public entities which have 50 or more employees to put in place procedures for internal reporting. However, the Directive has an implementation period of two years within which Malta must incorporate the provisions of the Directive into national law. Thus, to date, those obliged to put such internal procedures in place are those who fall within the definition of ‘employer’ in terms of the Act. However, once the Directive has been fully integrated into Maltese law the obligation to establish procedures for internal reporting will be much broader and will affect a greater number of employers.
Who is afforded protection?
Currently, the Act provides protection to the whistleblower himself. Thus, notwithstanding the provisions of the Criminal Code or of any other law, the whistleblower who makes a protected disclosure will not be liable to any civil or criminal proceedings or to any disciplinary proceedings for having made such disclosure.
The Act defines a whistleblower as any employee who makes a disclosure to a whistleblowing reporting officer or a whistleblowing reports unit, as the case may be, whether it qualifies as a protected disclosure or not. In this regard, the Act provides protection to individuals who fall within the definition of an ‘employee’ as per the following, provided that such disclosure constitutes a protected disclosure:
- Any person who has entered into or works under a contract of service with an employer and includes a contractor or subcontractor who performs work or supplies a service or undertakes to perform any work or to supply services;
- Any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker, but excluding work or service performed in a professional capacity to which an obligation of professional secrecy applies in terms of the Professional Secrecy Act when such work or service is not regulated by a specific contract of service and “outworker” means a person to whom articles, materials or services of any nature are given out by an employer for the performance of any type of work or service where such work or service is to be carried out either in the home of the outworker or in some other premises not being under the control and management of that other person;
- Any person in employment in the public administration, including as a member of a disciplined force;
- Any former employee;
- Any person who is or was seconded to an employer;
- Any volunteer in terms of article 2(1) of the Voluntary Organisations Act even when such work or service is not regulated by a specific contract of service;
- Any candidate for employment only where information concerning a serious threat to the public interest constituting an improper practice has been acquired during the recruitment process or at another pre-contractual negotiating stage.
On the other hand, under the Directive, protection is given to not only the whistleblower, but also to any person who facilitates a whistleblower, and third parties (colleagues or relatives of the whistleblower) who are also in a work-related context with the whistleblower’s employer.
Moreover, the Act provides that an external disclosure shall only be afforded protection if an internal disclosure has already been made or attempted to be made. Whereas the Directive states that protection should also be granted where European Union law or national law requires the whistleblower to report to the competent national authorities (i.e. external disclosure).
Nip it in the bud approach
The most effective way to encourage employees to report concerns is to ensure them that their identity will be protected and thus confidentiality is key. It is significant to point out that every whistleblowing reporting officer or whistleblowing reports unit to whom a protected disclosure is made must not disclose information that identifies or may lead to the identification of the whistleblower unless the whistleblower expressly consents in writing to the disclosure of that information.
Essentially, the principle goal for introducing this internal procedure is to ascertain any wrongdoings before they have fully materialized and thus focusing on a nip it in the bud approach. The protection afforded to the whistleblower should encourage more employees to speak up when they are aware of any concerning activities taking place within the workplace.