The Council of the European Union has formally approved new Rules detailing the protection of ‘Whistleblowers’.

The Directive on the protection of persons who report breaches of Union law entered into force in the EU on 12 November 2019. Members States have 2 years after the date to transpose the new Rules into their National Law.

The new Rules require the creation of ‘safe channels’ for reporting both within an organisation (private or public) and to Public Authorities. It is also intended to provide a
high level of protection to ‘Whistleblowers’ against retaliation and require National Authorities to adequately inform citizens and train Public Officials on how to deal with
‘Whistleblowing’.

Given the UK’s withdrawal from the ‘EU’, the UK Government has stated (in the letter) that it is not required to transpose the Directive into National Law as a departing
Member State. After the UK leaves the ‘EU’, it will be for the UK to decide which rights and protections to introduce or enhance in law.

Firms carrying out activities in the ‘EU’ should monitor the implementation of this Directive in relevant countries. It is likely that different countries will follow different
implementation timetables.

No action is currently required for Firms which only undertake activities in the UK; however, Firms should be aware of political developments, that may alter this situation
and monitor further updates and developments in this area.

The UK Government consulted on the misuse of Confidentiality Clauses (‘Non-Disclosure Agreements’, ‘NDA’) in March and April 2019 and is committed to:

• Legislate to ensure that a confidentiality clause cannot prevent an individual disclosing to the police, regulated health and care professionals or legal
  professionals
• Legislate so that the limitations of a confidentiality clause are clear to those signing them;
• Legislate to improve independent legal advice available to an individual
• Produce guidance on drafting requirements for confidentiality clauses
• Introduce new enforcement measures for confidentiality clauses that do not comply with legal requirements

The letter states that the new legislation will ensure those entering into ‘NDAs’ are more aware of their rights than before, including that the ‘NDA’ cannot be used to prevent them from ‘Whistleblowing’. If an ‘NDA’ in a Settlement Agreement does not follow new legislative requirements, the confidentiality clause itself will be void. The Government will also be legislating to introduce a requirement to be clear on the limits of ‘NDAs’ within the written statement of employment particulars.

Further information:
To read more, please follow this link:

Better protection of whistle-blowers: new EU-wide rules to kick in in 2021
https://www.consilium.europa.eu/en/press/press-releases/2019/10/07/better-protection-of-whistle-blowers-new-eu-wide-rules-to-kick-in-in-2021/

Proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union Law
http://europeanmemoranda.cabinetoffice.gov.uk/files/2019/10/20191002_AppA_-_HoC_Letter.pdf

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EU Parliament approves new rules to protect whistle-blowers

Please Note: This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this publication to specific issues or transactions.

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