Draft legislation entitled the Protection of the Whistleblower Act, 2010 has just been launched with the aim of setting out the basic structures and principles within which whistleblowing is to operate under Maltese law. In examining the draft law, it is important to distinguish between the popular media-driven definition of a successful “whistleblower” taking his or her “story” directly to the press or other external bodies and “real” internal whistleblowing, which actually leads to a proper investigation and solution of the internal conduct being challenged. It is the latter the draft law seeks to encourage and protect.
The proposed law seeks to answer four basic questions:
Who is granted protection?
The draft Bill protects an employee who makes a protected disclosure about an improper practice committed by his employer.
The wide definition of “employee” adopted in the draft extends its application to the private sector, the voluntary sector and the public administration.
What can be disclosed with protection?
For a disclosure to be protected, it must be made in good faith, not for personal gain and it must relate to an “improper practice”. An “improper practice” under the proposed law is: (a) the failure to comply with any legal obligation to which one is subject, (b) jeopardising the health and safety of an individual, (c) damage to the environment, (d) a corrupt practice (e) commission of a criminal offence and (f) a miscarriage of justice.
The draft law requires the person making the disclosure to reasonably believe the information disclosed is substantially true and tends to show an improper practice being committed by employer/another employee/persons acting in the employer’s name and interests. The possibility of malicious reporting is minimised by the requirement of good faith and the exclusion of the protections conferred by the draft Bill in cases where an employee discloses information he knows or ought to reasonably know is false.
Persons who report improper practices in which they were involved will not, by reason of the reporting, be granted immunity from prosecution or disciplinary proceedings.
To whom should reports of wrongdoing be made to be protected?
Reports of wrongdoing may be made internally within the employer in accordance with internal procedures set out by the employer or externally to the appropriate authority (being an authority prescribed by the proposed law to receive certain disclosures). The draft law requires internal disclosures before escalation to external disclosures. This aims to minimise the impact of the improper practice both within and outside the organisation where it is being committed. Employers must have internal whistleblowing procedures and appoint whistleblowing reporting officer (WRO), that is a person to whom a protected disclosure may be made internally within the employer. In certain prescribed cases, protected disclosures to the head of the organisation may be made.
Each prescribed “authority” is required to set up a whistleblowing unit (WBU) to receive and process external disclosures. The WBU acts as a filter and determines whether disclosures should be further investigated by another department within the authority, referred to another authority for better processing or not processed any further. Upon processing a disclosure, the WBU must, within a reasonable time, notify the person who made the disclosure of the determination of the WBU.
What protection is granted to the whistleblower?
The proposed law protects an employee who makes a protected disclosure from detrimental action. This is not restricted to occupational detriment but includes any action causing injury, loss or damage, victimisation, harassment and such actions. An employee who believes s/he suffered detrimental action has the right to apply to the First Hall of the Civil Court for: (a) an order requiring person who has taken the detrimental action to remedy that action or (b) an injunction. Furthermore, an employee who has suffered detrimental action has a right to damages from the employer who takes detrimental action in reprisal for a protected disclosure. This right does not affect any other right or remedy available to the person arising from the detrimental action.
Dr Bencini is an associate with Ganado & Associates, Advocates and wrote her M.A. thesis on Whistleblowing In The Financial Services Sector: The Position Under Maltese Law.