The 'Protection of the Whistleblower Act' (the 'Act') which came into force on the 15th September 2013 seeks to make provision for procedures in terms of which employees in both the private sector and the public administration may disclose information regarding improper practices committed by their employers or other employees in the employ of their employers and to protect employees who make the said disclosures from detrimental action.

The requirement to provide for internal procedures is currently restricted to any organisation within the private sector which according to its last annual or consolidated accounts meets 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 EUR 43,000,000;
  • an annual turnover exceeding EUR 50,000,000.

Employers satisfying the above criteria must adopt procedures for receiving and dealing with information about improper practices committed within or by that organisation. As a minimum, the organisation must identify the person/s (referred to as the 'whistleblowing reporting officer') to whom a protected disclosure would initially be made to. However, the Act grants the whistleblower the right, in the case of certain circumstances, to make a disclosure to the head of his organisation or to an external reporting unit set up within the authorities listed in the Act.

In order to encourage a whistleblower to make disclosures, the Act provides that the whistleblower's identity is to be kept confidential unless his express consent in writing is obtained. This is but one of forms of protection afforded to the whistleblower, since the Act provides that a whistleblower may not be subjected to detrimental action on account of having made a protected disclosure.

The Act provides an exhaustive list of what action or a series of actions would be considered to be an improper practice, wherein a restrictive interpretation should be applied, thus excluding very minor or trivial matters. An improper practice would arise if:

  • a person has failed, is failing or is likely to fail to comply with any law and, or legal obligation to which he is subject; or
  • the health or safety of any individual has been, is being or is likely to be endangered; or
  • the environment has been, is being or is likely to be damaged; or
  • a corrupt practice has occurred or is likely to occur or to have occurred; or
  • a criminal offence has been committed, is being committed or is likely to be committed; or
  • a miscarriage of justice has occurred, is occurring or is likely to occur; or
  • bribery has occurred or is likely to occur or to have occurred; or
  • a person abuses of his authority; or
  • information tending to show any matter falling within any one of the preceding paragraphs has been is being or is likely to be deliberately concealed.

A whistleblower will not be afforded the protection granted under the Act if the disclosure concerns information which he knows or ought to reasonably know is false; or if a disclosure is made other than in good faith; or is made for the purpose of personal gain. Furthermore disclosures of information protected by legal professional privilege as well as disclosures made anonymously are not considered to be protected disclosures.

It is expected that regulations for the better implementation of the Act as well to establish the internal procedures which employers must have in place for receiving and dealing with information about improper practices committed within or by an organisation be published in the near future.

© 2015 Mamo TCV Advocates. Reproduction of extracts from this document is permitted provided that clear acknowledgment is made of Mamo TCV Advocates and the author as the source.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.