In this article, we focus on what matters a whistleblower can report under the protection of the Whistleblower Act.
The article is part of a series of articles where CLEMENS focuses on the new whistleblower law and the most important points companies should be aware of when implementing procedures to comply with the whistleblower law.
What information is covered by the Whistleblower Act?
It follows from the Whistleblower Act that a whistleblower must be able to report the following matters under the protection of the Whistleblower Act:
- Breaches of EU law that fall within the scope of the Whistleblower Directive,
- other serious offenses; and
- other serious matters.
This means that a whistleblower is protected if a report relates to these matters, and it is thus irrelevant whether certain specific areas of law do not seem immediately relevant to the individual company/authority.
If a company is part of a group of companies that has companies in several EU member states, it is important to be aware that the scope of application may vary in the different EU member states, as the EU Whistleblower Directive only requires whistleblowing schemes to cover reports of breaches of EU law, whereas it is left to the individual member states to decide whether breaches of other serious offenses and serious matters should also be covered by the whistleblowing scheme.
Breaches of EU law
The following EU law rules are covered by the protection under the Whistleblower Act:
- Public procurement
- Financial services
- Products and markets
- Prevention of money laundering and terrorist financing
- Product safety and compliance
- Transportation safety
- Environmental protection
- Radiation protection and nuclear safety
- Food and feed safety
- Animal health and welfare
- Public health
- Consumer protection
- Protection of privacy and personal data and security of network and information systems (GDPR)
- Infringements affecting the EU's financial interests
- Infringements related to the internal market, including violations of EU competition and state aid rules
Any report of a violation of these acts must be processed according to the rules in the Whistleblower Act, and it is thus not a condition that the violation is serious, that the whistleblower can document the violation or the like.
Serious offenses and other serious matters
In addition to the above-mentioned EU law rules, Danish whistleblowing schemes must also cover reports of serious offenses and other serious matters.
"Serious offenses" includes both serious violations of Danish law and of the rules of EU law not mentioned above under point 2.
Unlike the offenses listed above under section 2, it is thus a requirement that a report of other offenses is "serious" or that a report concerns other "serious" matters before it is covered by the scope of the Whistleblower Act.
When assessing whether this seriousness criterion is met, the company may consider whether it would be in the public interest to bring the information to light.
The following offenses and serious matters will generally fall within the scope of the Whistleblower Act:
- Criminal offenses, including breach of statutory duty of confidentiality, misappropriation of funds, theft, fraud, embezzlement, embezzlement, fraud or bribery
- Serious or repeated violations of other legislation, including the Public Administration Act, the Freedom of Information Act or data protection legislation
- Serious or repeated violations of administrative law principles, including the principle of inquiry, the principle of equality, objectivity or proportionality
- Non-compliance with professional standards that could result in a risk to the health and safety of persons
- Sexual harassment
- Severe personal conflicts in the workplace, for example in the form of severe harassment
Conversely, information about violations of a less serious or trivial nature or reports about the whistleblower's own employment relationship will generally not be covered by the scope of the Whistleblower Act.
The actual assessment of the nature of the report is initially made by the internal whistleblowing unit appointed by the company or the external provider to which the company has entrusted the administration of the whistleblowing scheme, but ultimately it will be up to the courts to assess whether a report falls within or outside the scope of the law.
The fact that a report may fall outside the scope of the Whistleblower Act does not mean that the company cannot/should not choose to take the report seriously when it is received via the company's whistleblower scheme.
It simply means that the company is not legally obligated to assess the report, provide feedback to the whistleblower, and the whistleblower is not protected from retaliation under the Whistleblower Act.
In many cases, however, it will still be appropriate for the company to process all reports according to the requirements of the Whistleblower Act when they are reported through the company's designated reporting channels, especially in cases of doubt.
For other personal conflicts, however, it is a condition that such matters can be characterized as serious before they are covered by the whistleblower scheme.
Harassment on the basis of race, political or religious affiliation and sexual orientation will always be characterized as severe harassment, whereas less serious cases of bullying or similar will generally not be characterized as severe.
What information is not covered?
If a report is made regarding matters that are not covered by the Whistleblower Act, the workplace is not obliged to process the report according to the rules of the Whistleblower Act or to respond to the report, and the whistleblower will not be protected by the Act.
This may be the case, for example, if the report concerns violations of internal guidelines on sick leave, alcohol or smoking, which are generally not covered by the Whistleblower Act.
Specifically about offenses and events that took place before the law came into force
The company must process information about violations or matters that fall within the scope of the law, regardless of when the violation or matter occurred.
Thus, a report of a potential criminal offense or other circumstances where the statute of limitations may have expired at the time of the report cannot be rejected.
Reports on matters that took place before the Whistleblower Act came into force cannot be rejected either.
However, if the offense or incident occurred a long time ago, it may affect the whistleblowing unit's ability to follow up on the report and/or what actions would constitute sufficient follow-up on the report.
CLEMENS' whistleblower scheme
If you have questions about what matters a whistleblower can report, or if your company has not yet established an internal whistleblowing scheme, please contact the CLEMENS whistleblowing team.
CLEMENS' whistleblower scheme is user-friendly, flexible and quick to set up. With efficient and secure handling of reports, CLEMENS' whistleblower scheme enables you to quickly and discreetly rectify undesirable conditions and prevent potential financial losses.
When you choose CLEMENS' whistleblower scheme, you avoid worrying about multiple complicated regulations that require employee training, an administrative setup and unnecessary use of internal resources, and you ensure that all reports are handled legally and reported back to the company quickly and efficiently.
You can also read more about CLEMENS' whistleblower scheme here.
