Whistleblowing

Who is a Whistleblower?

A whistleblower is an employee who makes an oral or written communication of information on an improper practice. The Protection of the Whistleblower Act (Chapter 527 of the laws of Malta) sets out a list of improper practices, which include an action or a series of actions whereby:

1. a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; or
2. the health or safety of any individual has been, is being or is likely to be endangered; or
3. the environment has been, is being or is likely to be damaged; or
4. a corrupt practice has occurred or is likely to occur or to have occurred; or
5. a criminal offence has been committed, is being committed or is likely to be committed; or
6. a miscarriage of justice has occurred, is occurring or is likely to occur; or
7. bribery has occurred or is likely to occur or to have occurred; or
8. a person has failed, is failing or is likely to fail to comply with any legal obligation on public procurement to which he is subject; or
9. a person has failed, is failing or is likely to fail to comply with laws on financial services, products and markets, and prevention of money laundering and terrorist financing; or
10. a person has failed, is failing or is likely to fail to comply with product safety and compliance law; or
11. a person has failed, is failing or is likely to fail in ensuring transport safety; or
12. a person has failed, is failing or is likely to fail in ensuring radiation protection and nuclear safety; or
13. a person has failed, is failing or likely to fail in ensuring a food and feed safety, animal health and welfare; or
14. a person has failed, is failing or is likely to fail to comply with any legal obligation on consumer protection to which he is subject; or
15. a person has failed, is failing or is likely to fail to comply with any legal obligation on protection of privacy and personal data, and security of network and information systems to which he is subject; or
16. a breach affecting the financial interests of the European Union as referred to in Article 325 of the Treaty on the Functioning of the European Union (TFEU) and further specified in relevant European Union measures has occurred or is likely to occur or to have occurred; or
17. a breach relating to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union (TFEU), including breaches of European Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law has occurred or is likely to occur or to have occurred; or
18. information tending to show that any matter falling within any one of the preceding practices has been, is being or is likely to be deliberately concealed.

Apart from an existing or former employee who has or had an employment contract with an employer, a whistleblower may also include inter alia:

1. a contractor or subcontractor who performs work or supplies a service or undertakes to perform any work or to supply services to an employer;
2. any person who is or was seconded to an employer;
3. any candidate for employment only where information concerning improper practices has been acquired during the recruitment process or other pre-contractual negotiations; and
4. shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, and paid or unpaid trainees.

Which Employers fall within the scope of the Protection of the Whistleblower Act?

Not all employers fall within the scope of the Protection of the Whistleblower Act, which limits its applicability to:

1. Each ministry of the Government of Malta;
2. Any organisation within the private sector with fifty or more workers;
3. Any organisation within the private sector having fewer than fifty workers, but in respect of which a risk assessment reveals that the nature of its activities may pose risks for, in particular, the environment and public health;
4. Any voluntary organisation which annually raises more than five hundred thousand euro (€500,000) from public collections and other donations.

Which Disclosures are Protected?

A disclosure is a protected disclosure if the whistleblower:

1. had reasonable grounds to believe that the information on breaches disclosed was true at the time of the disclosure and that such information fell within the scope of the Protection of the Whistleblower Act; and
2. made (i) an internal disclosure in accordance with the employer’s internal procedures, or (ii) an external disclosure to the whistleblowing reports unit of any authority referred to in First Schedule of the Protection of the Whistleblower Act, or (iii) a public disclosure, in accordance with the Protection of the Whistleblower Act.

Generally, anonymously made disclosures are not protected disclosures in terms of the Protection of the Whistleblower Act. When, following a public disclosure with information on breaches that is made anonymously, the whistleblower is subsequently identified and suffers retaliation, that disclosure will still be a protected disclosure provided that the disclosure satisfies the conditions established for a disclosure to qualify as a protected disclosure.

How are Whistleblowers Protected?

Subject to certain exceptions stated in the Protection of the Whistleblower Act, despite any prohibition of or restriction on the disclosure of information under any enactment, rule of law, contract, oath or practice, a whistleblower may not be subjected to detrimental action on account of having made a protected disclosure.

Detrimental action includes:

• action causing injury, loss or damage; and, or
• victimisation, intimidation or harassment; and, or
• occupational detriment; and, or
• prosecution under article 101 of the Criminal Code relating to calumnious accusations and, or;
• civil or criminal proceedings or disciplinary proceedings.

Notwithstanding the provisions of the Criminal Code or of any other law, a whistleblower who makes a protected disclosure is not liable to any civil or criminal proceedings or to a disciplinary proceeding for having made such a disclosure.

Information that identifies or may lead to the identification of the whistleblower may not be disclosed and must remain confidential, unless the whistleblower expressly consents in writing to the disclosure of that information.

Any person who may have suffered detrimental action as a result of making a protected disclosure shall, without prejudice to any other right under any other law, have a right to compensation for any damage caused.

What obligations does an Employer have?

An employer falling within the scope of the Protection of the Whistleblower Act must have in operation internal procedures for receiving and dealing with internal disclosures of information about improper practices committed within or by that organisation.

Such procedures should include inter alia channels for receiving the reports in writing or orally (or both), the designation of a whistleblowing reporting officer competent for following-up on the reports, and diligent follow-up mechanisms.

Internal reporting channels must be designed, established and operated in a secure manner that ensures that the confidentiality of the identity of the whistleblower and any third party mentioned in the disclosure is protected, and prevents access thereto by unauthorised staff members.

Clear and easily accessible information about the existence of the internal procedures, and adequate information on how to use such procedures, must be published widely within the organisation and must be republished at regular intervals. Every employer shall also provide clear and easily accessible information regarding the procedures for reporting externally to competent authorities and, where relevant, to institutions, bodies, offices or agencies of the European Union.

The Protection of the Whistleblower Act prescribes other obligations that are incumbent upon an employer, including inter alia in relation to the protection of whistleblowers, the preservation of the confidentiality of disclosures, as well as the retention of records in this respect.