Summary

A worker involved in the EU-funded ‘Turkey III’ project acted as a whistleblower, alerting to potential passive corruption with an audit contract, at a time when Belgian law had not implemented Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the ‘Whistleblowing Directive’). The Labour Tribunal of Brussels recognized her whistleblower status and deemed her dismissal for serious cause retaliatory and so manifestly unreasonable.

Facts

The claimant was employed by the defendant under an indefinite term contract, assuming the role of project coordinator. She had been managing a project named ‘Turkey III’ since 2018, funded by the European Union and which was set to undergo an audit.
An audit firm was awarded the contract, after having provided a quotation of € 9,750. The claimant regarded this figure as excessive, given the projected budget of € 8,000, and communicated her views on the matter to her superior officer, who was the general secretary of the defendant.
The superior officer chose to accept the quotation, explaining that, in reciprocation, the general audit expenses on the accounts of the defendant would be frozen for the current fiscal year.
On 5 October 2020, in response to this decision, the claimant hired legal counsel. The counsel advised that the discount on the audit expenses was obtained to the detriment of the European Union and could potentially be construed as passive corruption.
On 7 October 2020, the claimant dispatched a letter to the deputy general secretary of the defendant, urging the defendant to take immediate measures to eliminate any risk of passive corruption. She closed her letter by reserving the right to alert the Prosecutor’s Office and/or the Central Office for the Repression of Corruption of the Belgian Federal Police.
The following day the claimant, along with the rest of the staff, was informed of her suspension during an investigation conducted by two investigators who were members of the board of directors of the defendant.
In correspondence dated 19 October 2020, the trade union contested the suspension and queried its legal basis. The suspension relied on an article from a company collective labour agreement (‘CLA’) that permitted investigations related to suspicions of serious misconduct. However, the CLA contained another article ensuring the anonymity of workers when they could claim the status of a whistleblower.
On 23 November 2020, the investigation report concluded that the claimant’s accusations were baseless, did not rely on any evidence, and lacked sufficient factual basis, while the general secretary had been merely fulfilling their professional duties.
On 24 November 2020, the claimant was dismissed based on this report, the serious cause justifying her dismissal without notice or indemnity being her slanderous denunciation based on false allegations.
The dismissal for serious cause was contested, and a claim was filed before the Labour Tribunal of Brussels on 22 November 2021. The claimant asked for an indemnity in lieu of notice and for damages related to both the circumstances and the reasons for the dismissal.

Judgment

First, the Labour Tribunal of Brussels analyzed the concept of ‘whistleblower’, underscoring that at the time of the events Belgian law did not grant any particular protection to whistleblowers considering that the Whistleblowing Directive was not yet transposed in Belgium.
However, the Tribunal highlighted that this concept was not unknown during that period. Indeed, the Tribunal referred to the 2014 recommendation from the Council of Ministers of the Council of Europe, aiming to protect individuals who, in the context of their work-based relationship, report or disclose information on threats or harm to the public interest. Based on this recommendation, whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer.
Furthermore, the Tribunal referenced a judgment from the European Court of Human Rights, the Heinisch – v – Germany case (no. 28274/08, 21 July 2011), which involved a worker dismissed following a public disclosure. This judgment emphasized that workers have a duty of loyalty towards their employer whose reputation should be protected. At the same time, workers can exercise their freedom of expression and should be allowed to speak up against their employer when certain conditions are met.
Then, the Tribunal analyzed the worker’s situation in light of the case law of the European Court of Human Rights and determined that the facts were internally disclosed to the deputy general secretary of the defendant, in accordance with Article 5.12 of the company CLA dedicated to whistleblower protection. According to the Tribunal, therefore, the claimant was a whistleblower. The European Court of Human Rights has indeed made clear that internal disclosure is sufficient to enjoy whistleblower protection while public disclosure can only be used as a means of last resort.
The Tribunal also highlighted that the claimant, even if she worked for an association defending the interests of journalists, was not a journalist herself as the defendant seemed to think so that the rules which govern that profession could not be applied to her.
Finally, the Tribunal noted that the defendant had not been able to provide a clear and convincing answer to the allegations of EU funding mismanagement made by the claimant in the public interest so that she should be considered as a whistleblower.
Regarding the serious cause itself, the Tribunal reminded that workers are entitled to criticize their employer so long as they do not cross the limit which transforms healthy criticism into insubordination. In this case, the Tribunal decided that the claimant acted as a prudent and diligent worker and committed no fault in her actions, so that the serious cause alleged was irregular. Indeed, the claimant was a whistleblower who had raised a serious issue based on specific facts internally, she had collaborated during the investigation and had not made public her allegations. If one added to this that the investigation had not convincingly proven her wrong, she could not be dismissed for a cause based on fallacious allegations or insubordination.
Additionally, the Tribunal determined that the defendant retaliated against the filing of an internal report by dismissing the claimant. Accordingly, the Tribunal awarded the claimant the highest lump sum allowance available for manifestly unreasonable dismissal under Belgian law, i.e. 17 weeks’ pay.
Finally, the Tribunal deemed that the dismissal was also abusive regarding its circumstances. Indeed, by suspending the claimant during the investigation based on a provision of a company CLA dedicated to serious cause and by publicizing this measure, both the investigation and the dismissal tarnished the reputation of the claimant who was awarded € 5,000 in damages.

Commentary

This decision is interesting as it provides an opportunity to compare the situation of whistleblowers before and after the implementation of the Whistleblowing Directive in Belgium.
In that respect, similarities can be noted. First, the claimant had reported the matter internally to the deputy general secretary of the defendant. The Tribunal considered that it was sufficient to offer whistleblowing protection based on the case law of the European Court of Human Rights. Likewise, the Whistleblowing Directive allows reporting through internal reporting channels but the obligation to set up an internal channel only concerns legal entities in the private sector with 50 or more workers. It would be interesting to see if the defendant meets that threshold. If it does not, the Directive and the law of 28 November 2022 which implements that Directive in Belgium would not apply as regards internal reporting but the rest of the Directive and the law of 28 November 2022 would still apply (protection against retaliation, external reporting, public disclosure, etc.).
Second, the report concerns misuse of EU funds. This is clearly a matter of public interest, which is one of the conditions to be met in order to enjoy protection under the case law of the European Court of Human Rights. The report would also fall within the scope of the Directive but not because it is of public interest as such. The Directive has taken a stricter view by limiting the scope of the Directive to specific fields of EU competence where compliance problems should be dealt with in priority. Breaches affecting the financial interests of the Union is one of these fields but there are many others (Article 2).
Finally, dismissal for serious cause is considered as a retaliation measure. It would also be considered such a measure under the Whistleblowing Directive which defines retaliation as “any direct or indirect act or omission which occurs in a work-related context, is prompted by internal or external reporting or by public disclosure, and which causes or may cause unjustified detriment to the reporting person” (Article 5(11)).
In terms of differences to be noted if the case had been decided under the new Directive as implemented in Belgium, one should mention the strength of the sanctions that can be imposed. The claimant had been awarded only 17 weeks’ pay as compensation for manifestly unreasonable dismissal under Belgian law. This was the maximum compensation a judge could award for unjustified dismissal in Belgium. With the law of 28 November 2022, the judge must award between 18 and 26 weeks’ remuneration to workers who have been a victim of retaliation measures following a report.
Another difference to be noted is that the Tribunal placed emphasis on the fact that the allegations made by the claimant were not proven false by the investigation in order to conclude that they should benefit from whistleblower protection. I am not sure that this reasoning would hold under the new Directive as workers are protected as whistleblowers under the only condition that “they had reasonable grounds to believe that the information on breaches reported was true at the time of reporting”. Recital 32 of the Directive specifies that:

“[t]hat requirement is an essential safeguard against malicious and frivolous or abusive reports as it ensures that those who, at the time of the reporting, deliberately and knowingly reported wrong or misleading information do not enjoy protection. At the same time, the requirement ensures that protection is not lost where the reporting person reported inaccurate information on breaches by honest mistake”.

The Tribunal seems to go further by requiring that the information reported should not be contradicted by the investigation. On the other hand, the Directive only refuses protection to workers acting in bad faith at the time of reporting.
To conclude on a point of EU institutional law, one might find it strange that the Tribunal refers to a Recommendation of the Council of Europe with no legal value rather than to the directive that was already adopted at the time but which was not yet due for transposition. This is a correct application of the law since the obligation to interpret national law in conformity with directives applies only as from the transposition date. Before that, national judges should only refrain from interpreting national law in a manner which would seriously compromise, after the period for transposition has expired, attainment of the objectives pursued by the directive (Case C-212/04, Adeneler). This was not the case in the present matter.

Comments from other jurisdictions

Germany (Leif Born, Luther Rechtsanwaltsgesellschaft mbH): From a German perspective, the decision of the Labour Tribunal of Brussels comes as little surprise. In Germany, it had already been recognized in case law before the implementation of the Whistleblowing Directive (Directive (EU) 2019/1937) – at least since the judgment of the European Court of Human Rights in the Heinisch – v – Germany case (no. 28274/08, 21 July 2011) – that employees are entitled to report wrongdoing in the company, i.e. to engage in whistleblowing, especially if the report is made internally.
Nevertheless, the implementation of the Whistleblowing Directive has also brought about some changes in Germany with regard to the treatment of whistleblowers. The German law implementing the EU Directive, the so-called Whistleblower Protection Act (Hinweisgeberschutzgesetz, ‘HinSchG’), did not come into force until 2 July 2023, i.e. approximately one and a half years after the implementation date specified in the EU Directive, as the governing parties were unable to agree on a draft for a long time. Because of the delay, the EU Commission has brought an action against the Federal Republic of Germany before the European Court of Justice, threatening fines in the double-digit millions.
In summary, the adoption of the HinSchG has strengthened the protection of whistleblowers in Germany. It is particularly worth mentioning that the scope of application goes beyond the requirements of the Whistleblowing Directive. It was added that protection also exists for reports of violations that are punishable under German criminal law as well as violations that are subject to fines, in so far as the violated regulation serves to protect life, limb or health or to protect the rights of employees or their representative bodies. The purpose of this addition was, in particular, to include the reporting of minimum wage violations or violations of statutory provisions regarding temporary employment within the scope of protection.
With regard to the transposition of the Whistleblowing Directive into Belgian law, it is also interesting to note that under the German HinSchG, a person providing information is only entitled to compensation if a financial loss has actually been incurred as a result of a prohibited retaliation measure. The compensation of a general indemnity is not provided for in the HinSchG. However, this is not necessary in Germany, as the law provides for the invalidity of an unlawful retaliation measure, i.e. in the event of termination, the employee can sue for the invalidity of the termination and thus their continued employment. Accordingly, the present case would have been decided differently by a German court than by the Labour Tribunal of Brussels. The employee would not have received compensation, but the employer would have been ordered to continue employing the employee.

Italy (Ornella Patané, Toffoletto De Luca Tamajo): In Italy, the judge would have come to the same decision despite the application of different legislation. In fact, the Italian law implementing the Whistleblowing Directive does not provide for retroactive effect. However, the Italian legislation already provided for special protection for dismissals considered by the court as discriminatory or retaliatory. Also, on the basis of these rules, if the judge finds retaliatory elements regarding the dismissal, they can hold the dismissal to be null and void. Compared to the previous legislation, the new law implementing the EU Directive on Whistleblowing, provides for even more intense protection which, among other aspects, involves the reversal of the burden of proof, which now, in cases of whistleblowing, falls on the employer.

Romania (Andreea Suciu, Georgia Vasiu, Suciu – Employment and Data Protection Lawyers): Prior to the implementation of Directive (EU) 2019/1937, Romanian courts dealt with the issue of whistleblowers differently, depending on whether we were talking about whistleblowers working in public institutions or in private companies.
For the whistleblower working in public institutions, we should mention that Romania had, prior to the implementation of Directive (EU) 2019/1937, a law that regulated, much more superficially, the protection of the whistleblower. We are talking here about Law no. 571/2004 (regarding the protection of staff in public authorities, public institutions and other establishments who report breaches of the law) which was revoked when Law no. 361/2022 came into force.
Law no. 571/2004 regulated certain measures for the protection of any person who complained or reported violations of the law within public authorities, public institutions and other public units, committed by persons with managerial or executive functions in public authorities, public institutions and other budgetary units. However, the law did not provide any detailed measures regarding possible reprisals, as the current legislation implementing the Directive does.
According to a report made by APADOR - CH and Active Watch, which was released in October 2021, Romania was in 2004 the first European country to adopt a whistleblower law. However, according to the same report, for most of the people included in the study, the legal provisions on whistleblower protection were unknown – most of the people who decided to complain about activities within a public organization that were deemed illegal, immoral, illicit, unsafe or fraudulent, chose to do it through public channels, mostly through the media.
Regarding the solutions of the courts for the situations in which the sanctioning measures ordered against the whistleblower within the public institutions were contested, a distinction was made between:

• Situations in which the whistleblower was (disciplinarily) sanctioned for ‘blowing the whistle’. In most of the decisions, the court ascertained the quality of the whistleblower, their good faith and ordered the annulment of the measure.

• Situations in which the whistleblower was sanctioned for other acts allegedly carried out in connection with their function. Although in court the whistleblower claimed that the (disciplinary) sanction imposed represented a form of reprisal against them, which was unfounded, the court did not recognize them as a whistleblower, and decided to maintain the sanction if, in the opinion of the court, the employer was able to prove that the acts constituted disciplinary offences.

For whistleblowers belonging to the private sector, who did not benefit from legislative protection before the implementation of the Directive, the solutions in the national law were not necessarily in the sense of recognition of the whistleblower quality. When there were certain disclosures related to the illegal activity of a company/members of the company, in the absence of a regulated possibility of internal reporting, they were generally reported through external channels, usually through the media. In such situations, employers applied sanctioning measures on employees, generally pointing out violations of the obligations of loyalty and respect for professional secrets.
The solutions of the national courts were mainly in the sense that they decided to annul the sanctioning decisions, either because they considered that they were part of a series of acts of harassment at work, or because the application of these sanctions was not justified by reference to Article 10 of the European Convention on Human Rights. The courts held, by reference to Article 10, that the employee could not be accused of bad faith and violation of the duty of fidelity or of professional secrets, since it was not proven that the facts reported were part of a campaign to denigrate the head of the establishment but related to their conduct and attitude as the head of the establishment.
In cases of the annulment of any dismissal decisions, the employees were reinstated and paid their wages retroactively from the time of the dismissal to the time of their reinstatement.
To conclude, prior to the implementation of the Whistleblowing Directive in Romania, the courts used in their motivations the provisions of Law no. 571/2004 for whistleblowers from public institutions, and for the whistleblowers from the private sector the courts referred to Article 10 of the European Convention on Human Rights or internal provisions that were related to acts of mobbing or discrimination, when discussing a string of reprisals. Upon transposition of the Directive into national law, the court’s role will be much easier in terms of justifying the legal basis.

United Kingdom (Bethan Carney, Lewis Silkin LLP): This report highlights an interesting distinction between the test the court applied, which held that it was relevant that the allegation had not been proven false, and the lower burden set by the new Directive, under which whistleblowers only had to have ‘reasonable grounds to believe that the information on breaches reported was true’. The position under UK law is slightly different from both these positions. It holds that to qualify for protection the information in the disclosure must in the reasonable belief of the worker be made in the public interest and tend to show that a ‘relevant failure’ has occurred (or is occurring or is likely to occur). The Employment Appeal Tribunal in Soh – v – Imperial College of Science, Technology and Medicine (EAT 0350/2014) pointed out that there is a distinction between saying ‘I believe X is true’ and saying ‘I believe that this information tends to show X is true’. So, in circumstances where the worker passes on information provided by a third party (which the worker might not be able to assess for truthfulness), that worker will still have protection provided they believe the information passed on tends to show a relevant failure has occurred.

Subject: Whistleblowing
Parties: Unknown
Court: Tribunal du travail francophone de Bruxelles (French speaking Labour Tribunal of Brussels)
Date: 20 January 2023
Case number: RG n° 21/3980/A and 21/4220/A
Internet publication: Not available