The Finnish Act on the Protection of Persons Reporting Infringements of European Union and National Law, or the Whistleblower Act, entered into force on 1 January 2023. The Act implements the European Union's Whistleblowing Directive. The aim of the Act is to protect whistleblowers, i.e. people who report breaches of laws that they detect in the course of their work. The Whistleblower Act provides a framework for ways of reporting misconduct or unlawful activities and for the protection that is given to whistleblowers.
The Act obligates private and public sector organisations with 50 or more workers to establish a channel for reporting suspected misconduct. Establishing a channel voluntarily is also possible. Companies and organisations with 250 or more workers have had to establish a whistleblower channel by the end of March 2023, and organisations with 50 or more workers are required to establish a channel by 17 December 2023.
When should reports be submitted?
A whistleblower is a person who, in the course of their work, detects breaches of European or national law, for example in public procurement, financial services, food safety, protection of the environment or consumer protection, and reports it in a reporting channel. The condition for the protection of reporting persons is that the report concerns an act or omission that punishable by law, that can cause a sanction of a punitive nature or that could severely endanger the fulfilment of legislative goals according to public interest.
The regulatory condition concerning whistleblower protection is that the reporting person has, at the time of reporting, reasonable grounds to believe that the information concerning the breach is true. The conditions for protection are not met if the report concerns information that is objectively assessed as manifestly inaccurate or information that has already been fully made public. Similarly, obvious rumours do not entitle the whistleblower to protection.
However, the law does not require the reporting person to have concrete evidence on the matter at the time of reporting. When considering the conditions for protection of the reporting person, objective assessment is performed as to whether the reporting person can be deemed to have had reasonable grounds to believe at the time of reporting, in light of all the circumstances that affect the matter, that the information is accurate, that is, if the reporting person is sincere in reporting the information.
The person responsible for handling the report must take the necessary measures to examine the accuracy of the report and to address the breach, if necessary.
Protection may be given to a reporting person who has obtained the reported information in the course of their work or in a work-related context. The reporting person may be, for example, a current or former employee, un unpaid trainee, a self-employed person, a shareholder, a member of the board or administrative council of an organisation or foundation or a managing director.
Prohibition of retaliation
With the channel, the organisation gives staff and stakeholders the opportunity to confidentially submit anonymous or named reports about the activities of the organisation. Reports are received securely through the reporting channel and so that identity is protected. The identity of the reporting person and the subject of the report must be kept secret when handling the report. All persons handling the report are subject to the obligation of secrecy.
Whistleblower protection prohibits retaliation against the reporting person. It is also prohibited to take action for the purpose of preventing the reporting or public disclosure of information concerning a breach. The concept of retaliation should be understood broadly.
According to the Act, the conduct or the decision of an employer or their representative shall be considered a prohibited retaliation if the terms of employment of an employed person are weakened, the employment relationship is terminated, the person is laid off, or they are otherwise treated in a disadvantageous way or are subject to other negative consequences. The reporting person should therefore not be subjected to any disadvantageous retaliation or consequences as a result of submitting a report in the reporting channel.
Any parties who assisted the person submitting the report, such as the person's close relatives and the person's company or employer, as also protected against retaliation.
Anyone engaging in retaliation as the result of a report may be liable to pay damages and compensation.
It is a good idea to become familiar with your organisation's whistleblowing policy. You should keep in mind that omissions related to employment relationships, for instance, are not covered by the Whistleblowing Act. If you have any questions or concerns about your employment relationship, you can turn to the employment lawyers of TEK.
The author works as a lawyer at TEK.