STAR Sample Procedure (2010

Does your jurisdiction allow certain interested groups (e.g. trade unions, consumer protection groups) to take collective action to protect whistleblowers?

Does your jurisdiction allow fi nancial incentives or rewards for whistleblowers? Poland Portugal Romania Singapore Slovenia Yes, trade unions and noncommercial organisations No Yes, trade unions Yes, trade unions

No provision – Yes, employer may set incentives No No

South Korea UK USA What is the overall relevance of whistleblowing in your jurisdiction ? How would you rate the overall relevance of this subject in the fi eld of employment law? Little relevance Some relevance, but many cases do not seem to reach the courts Important, relevance growing since “Watergate” scandal and again after Snowden disclosures

Are there many cases or is there extensive literature on this subject? Few cases, some literature Yes Yes

What is the legal basis for the protection of whistleblowers in your jurisdiction ? Are there any special statutes on the protection of whistleblowers in your jurisdiction? Yes, special statute each for public and for private sector Yes Yes, many statutes for certain situations (nationwide and regional), but no general statute on the protection of whistleblowers

Are there any general statutes covering whistleblowing in your jurisdiction? Are whistleblowers protected by the case-law in your jurisdiction? Yes, case-law interpreting statutes Yes, antidiscrimination legislation

Yes, case-law interpreting special legislation Yes, case-law interpreting special legislation Yes, case-law interpreting special legislation Case-law often interprets special legislation restrictively, lowering level of protection

(continued)

South Korea UK USA

Who is protected ? Does your jurisdiction protect everyone or employees only? Are self-employed persons also protected? Does your jurisdiction protect people who are helping or encouraging whistleblowers? Everyone “Workers”, which has a broader scope than “employees” Some statutes protect everyone

See above Yes See above

Yes Yes, under antidiscrimination legislation, but only in relation to complaints of unlawful discrimination

Does your jurisdiction protect persons who affi rm a whistleblower’s allegations? Yes Yes –

What kind of behaviour is protected ? Does your jurisdiction allow for anonymous whistleblowing? No Yes Yes

Does your jurisdiction require the whistleblower to make use of internal reporting systems before he is allowed to appeal to third parties? No, but restrictions apply Yes, but exceptions apply Not in general

Is a whistleblower allowed to turn to the media in your jurisdiction, at least in severe cases? Does your jurisdiction protect whistleblowers who are making allegations erroneously or in the face of an uncertainty of the relevant facts? Yes, but not covered by special legislation/by labour law only Yes, good faith requirement Yes, but restrictions apply Depends on the special legislation applicable

Yes, whistleblower must reasonably believe that disclosure is in the public interest Yes, good faith requirement

(continued)

South Korea UK USA

Is the motivation of the whistleblower relevant in your jurisdiction? Yes, good faith requirement Yes, whistleblower must reasonably believe that disclosure is in the public interest

What kind of facts may a whistleblower report in your jurisdiction? – Breaches of law Depends on the Danger to life, health or special legislation the environment applicable, but they cover breaches of law, danger to life, health and public safety

Is a whistleblower protected if he reports bygone incidents which are unlikely to happen again? Yes Yes –

Is there an obligation to blow the whistle in your jurisdiction?

Yes, in the public sector, corruption and a danger to the public need to be reported What is the level of protection offered ? Are whistleblowers protected against any kind of detriment or against dismissal only? Any kind of detriment Any kind of detriment Any kind of detriment (may depend on the special legislation applicable)

Which party bears the onus in dismissal cases that a notice was given due to whistleblowing? Employer Employer –

Does your jurisdiction allow certain interested groups (e.g. trade unions, consumer protection groups) to take collective action to protect whistleblowers? No provision No –

Does your jurisdiction allow fi nancial incentives or rewards for whistleblowers? Yes, but only insofar as expressively provided for by special legislation (not by the employer) Yes Yes

(continued)

Civil service act and public service model rules

Yes No Partial Notes

Broad defi nition of whistleblowing[m18] X “Vermoeden Misstanden” as presumed defi ciencies – an appropriately broad subject matter defi nition -

Broad defi nition of whistleblower[m19] Broad defi nition of retribution protection

Internal reporting mechanism[m21] X Only public servants in public service. In private sector recommendations, only – often unheeded. X The defi nition is a bit unclear: “No disadvantage of any sort to legal positions” – but only to legal positions ?! [m20] X Yes, there the rules prescribe fairly clear internal reporting mechanisms within given public institutions.

External reporting mechanism X To National Ombudsman and Integrity Commission

Whistleblower participation X The public service whistleblower may ask for a conclusive answer within a given time frame – no actual participation in process.

Rewards System X Protection of confi dentiality X Only in the sense that the procedure is designed to have all information stay internal.

Anonymous reports accepted X Not under the offi cial procedures

No sanctions for misguided reporting Whistleblower complaints authority Genuine day in court[m22] X As long as done in good faith.

X National Ombudsman

X There is no mechanism to debate “conclusive remarks” on internal whistleblowing. If whistleblowers suffer a detriment, they can challenge the administration in Court like anyone else.

Full range of remedies[m23] Penalties for retaliation[m24]

Involvement of multiple actors X X Yes – as for anyone.

X No special penalties on retaliated against whistleblowers, therefor only sanctions, if behaviour is generally prohibited.

STAR recommendations and model rules

Yes No Partial Notes

Broad defi nition of whistleblowing Broad defi nition of whistleblower Broad defi nition of retribution protection Internal reporting mechanism External reporting mechanism X

X

X X Employee, (…) whether or not under working contract X No disadvantage of any sort – to legal positions

Whistleblower participation X Rewards System X Protection of confi dentiality X “not inform others in the company unnecessarily”

Anonymous reports accepted X

No sanctions for misguided reporting Whistleblower complaints authority X

X Now, also the Whistleblower Advice Center

Genuine day in court X As for anyone Full range of remedies X As for anyone, however, since 2009 costs of proceedings could be partially reimbursed. Penalties for retaliation X As for anyone Involvement of multiple actors X

Legal Material

Ambtenarenwet

Artikel 125 quinquies

1. Voor zover deze onderwerpen niet bij of krachtens de wet zijn geregeld, worden voor de ambtenaren , door of vanwege het rijk aangesteld, bij of krachtens

algemene maatregel van bestuur voorschriften vastgesteld betreffende:

(a–e) (…) [confl icts of interest, outside employment; insider information;] (f) een procedure voor het omgaan met bij een ambtenaar levende vermoedens van misstanden binnen de organisatie waar hij werkzaam is .

2. (…) 3. De ambtenaar die te goeder trouw de bij hem levende vermoedens van misstanden meldt volgens de procedure, bedoeld in het eerste lid onder f, zal als gevolg van het melden van die vermoedens geen nadelige gevolgen voor zijn rechtspositie ondervinden tijdens en na het volgen van die procedure.

Model Procedures 1

The three tiered procedure provided by the Labour Foundation has little resemblance of its UK role model:

Stichting Model Tier 1 [m25][only?] if the relevant hierarchical superior is involved, the whistleblower may address the immediate “superior authority”;

1 Stichting van de Arbeid, in Appendix: Sample procedure Procedural rules for dealing with suspected malpractice.

© Springer International Publishing Switzerland 2016 G. Thüsing, G. Forst (eds.), Whistleblowing - A Comparative Study, Ius Comparatum - Global Studies in Comparative Law 16, DOI 10.1007/978-3-319-25577-4 329