canales de denuncia

This post is also available in: Español

Developing a culture of compliance has led to a change of focus over the last few decades in terms of the duty of contractual good faith that must govern employment relationships.

Workers are no longer required to keep quiet about eventual illegalities or infringement of company codes of ethics of which they may become aware of in performing their work. Quite the opposite, they are assigned an important role as they are in a perfect position to detect these situations within organizations.

The law encourages workers to report any illegalities and protects them when they do. Directive (EU) 2019/1937 of October 23, 2019, on the protection from retaliation of persons who report breaches of Union law, known as the Whistleblowing Directive, aims to enable, encourage and facilitate reporting by individuals who have knowledge of infringements of European regulations within the context of their work.

The Directive establishes the obligation to implement internal reporting procedures and channels, and procedures for handling reports in public and private entities with over 50 employees.

The deadline for transposing this Directive is December 17, 2021 for companies with 250 or more employees and 2023 for companies with between 50 and 249 employees.

To properly implement whistleblowing channels, the Directive provides that they should be negotiated with the workers’ legal representatives where established in national legislation, and it specifically determines the scope and content of whistleblowing procedures and processes. These are:

  1. Whistleblowing channels must allow for verbal and written complaints, as well as by telephone or other voice messaging systems, and in person if the whistleblower so requests it.
  2. Whistleblowing channels must ensure that the whistleblower’s identity and that of any third party mentioned in the report are kept confidential.
  3. Receipt of the complaint report must be acknowledged within a maximum of seven days.
  4. A person or impartial service that is competent to deal with complaints, which may be the same person or service that receives them, must be appointed. This investigator will maintain communication with the whistleblower and, if necessary, request additional information and provide a response.
  5. All reports, including anonymous ones when acceptable under national law, must be handled diligently.
  6. The whistleblower must receive an answer regarding the report’s handling within three months from the date receipt is acknowledged and, if there is no acknowledgment, within seven days after the report is filed.
  7. One of the most important contributions of the Directive is protecting whistleblowers from any reprisals due to their report, which was already covered in Spain under the guarantee of indemnity.

Establishing whistleblowing channels that comply with all the guarantees and the European regulations in this area must not only be seen as a legal obligation but as an opportunity to go deeper and advance the culture of compliance, an essential element to show the company’s ethical commitment, provide security to its customers, shareholders and workers, and ensure a successful internal investigation.

Given that the countdown to the deadline for transposing the Directive into law has started, we suggest that companies that do not yet have whistleblowing channels start designing and implementing one, and that those that already have them start adapting them to the Directive.

This post is also available in: Español

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beatriz.pinter@cuatrecasas.com

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clara.couret@cuatrecasas.com