Newsflash

In a judgment dated 20 January 2023, the French-speaking Labour Court of Brussels recognised the status of "whistleblower" for a private sector worker, in application of European case law, a recommendation of the Council of Ministers of the European Council and a company collective labour agreement. The dismissal of the worker for serious cause was also considered to be unfounded, manifestly unreasonable and abusive.

A worker, employed under a contract for indefinite duration as a project coordinator, was supervising an EU-funded project, which was to be audited. The audit contract was obtained by an auditing company which proposed a fee that was too high in relation to the planned budget. The employer told the auditing company that the (too high) fee was accepted with the understanding that the auditing company would freeze its audit general costs for the year in return. Advised by a lawyer, the worker feared that this behaviour to the detriment of the European Union would be qualified as passive bribery. She therefore informed her employer of her suspicion of financial irregularities.

The worker was initially suspended while her employer conducted a thorough investigation. Once the investigation was completed and a report filed, the worker was dismissed for serious cause, on the basis that she had made an alleged slanderous accusation.

At the time of the events, the European Directive 2019/1937 on whistleblowers in the private sector was not yet applicable. There was a recommendation of the Council of Ministers of the European Council of 30 April 2014 which provided protection for "persons who, in the context of their employment relationship, report or reveal information concerning threats or harm to the public interest". The European Court of Human Rights had also handed down several judgments with regard to freedom of expression, including the Heinisch v. Germany case, in which the Court recognised the right of workers to denounce unlawful conduct or actions by their employer, while ensuring that their duty of loyalty and discretion towards their employer, the protection of their employer's reputation and its business interests. In this case, the Court considered that there was a violation of the right to freedom of expression, holding that the worker could make a public disclosure as a last resort, if it was clearly impossible to do otherwise.

In the case that gave rise to the judgment under consideration, a collective labour agreement specific to the company provided that "staff must be able to express their concerns without fear of any repercussions or pressure from the political management". The French-speaking labour court of Brussels found that the worker had acted as a "whistleblower", and in a legitimate way. It considered that the facts should first be denounced internally, to a superior for example, and that only if this possibility could not be used (for example in the case of bias) a public denunciation could be envisaged. In this case, the worker had first made an internal denunciation. Moreover, the worker had not made the accusations with malicious intent, but had suspected the existence of an irregularity. Her intention was to inform and alert and she had not made her denunciation public.

Three consequences will follow from the fact that the Labour Court considered the worker to be a whistleblower. Firstly, the worker's dismissal for serious cause was not recognised, since her conduct was that of a normally careful and diligent worker, and her whistleblowing could not be considered slanderous or insubordinate. Secondly, her dismissal was considered manifestly unreasonable, on the basis that the employer had dismissed her in retaliation for her whistleblowing behaviour. Thirdly, her dismissal was found to be abusive, in particular because it had damaged her reputation due to the circumstances of her dismissal (the court took into account her long seniority).

 

Key message

Caution is required when an employer is considering dismissal or other measures against an employee who has made a report of a dysfunction or irregularity within the company. Today, account should be taken of Directive 2019/1937 of the Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of European Union law and the Act of 28 November 2022 on the protection of persons who report breaches of Union or national law observed within a legal entity in the private sector (separate regulations apply in the public sector), which prohibit retaliatory measures. The whistleblower must have acted in good faith. In this respect, we refer to our Newsletter on the law of 28 November 2022.