The EU Whistleblowing Directive and Brexit - what does it mean for the UK?

The 17 December 2021 deadline for implementing the EU Whistleblowing Directive is fast approaching.

As we noted in a previous blog post EU member states are required to implement the Directive by this date. The UK is no longer an EU member state and therefore has no obligation under EU law to implement the Directive. The UK and the EU have, however, agreed a UK/EU Trade and Co-operation Agreement. Under that Agreement (and as we noted in a previous blog post) the UK and EU agree not to weaken or reduce in a manner affecting trade or investment between the parties their existing labour and social levels of protection. There is no equivalent obligation requiring the harmonisation of such rights granted by one party after the end of the transition period. Indeed, the Trade and Co-operation Agreement explicitly recognises that each party has the right to determine its own future policies with regard to labour rights. This does not mean, however, that the Directive will have no effect on organisations with operations in the UK.

Before Brexit the UK was regarded as one of the member states with the strongest whistleblower protections, but there are some additional enhancements provided by the Directive that go further than existing UK law. For example, while the Directive only relates to breaches of certain EU laws, where such breaches occur it extends protection to “facilitators” who assist whistleblowers, and it also sets out procedural expectations and timelines that organisations have to follow when responding to whistleblowing reports. How will the Directive therefore impact on the UK?

Firstly, many large employers who have operations in both the EU and UK may choose to implement some or all of the additional requirements of the Directive in their UK business for reasons of efficiency and/or consistency, even where they are not strictly required in the UK.

Secondly, the UK/EU Trade and Co-operation Agreement provides that if future UK and EU labour rights do diverge significantly in a way that materially impacts on trade or investment then either party may take appropriate rebalancing measures to address the situation. Given the nature of whistleblowing rights and the relatively limited enhancements that the Directive provides over and above existing UK law, it does not seem likely that any divergence caused by the UK not implementing the Directive would be significant enough to trigger this provision. It may be the case, however, that in the light of this requirement the UK government’s ongoing monitoring of developments in EU employment law could lead it to consider developing UK law. There are ongoing discussions within Parliament about reform of UK whistleblowing law, and the monitoring of developments in the EU is likely to feed into this.

Developments in the EU may no longer have the same direct resonance for the UK that they once did, but the shadow cast by EU law will still be long and developments in the EU, including in the important field of whistleblowing, should continue to be monitored by UK organisations.