Chamber’s Work Victory: Several Chamber’s Proposals Included in the Draft Notifier Protection Act

At the beginning of December, the Ministry of Justice sent the draft Notifier Protection Act, also known as the Whistle Blower Protection Act to the Government. Compared to the previous version, the Ministry has made several amendments to the draft act, taking into account the majority of the Chamber’s proposals. 

The main content of the draft act has remained the same. The principal aim of the draft act is to offer protection against work-related discrimination to people who notify of legal infringements that have become known to them in relation to work-related activities. Among other things, the draft act still contains a provision according to which employers with at least 50 employees must create an internal notification channel to enable people to notify of violations. Additionally, people can notify of a violation to a respective state agency or the public.

Although the Ministry has not made any changes in the principles of the draft act, it contains several amendments that are important for entrepreneurs, which offer better flexibility and make interpreting the new law easier.  

Companies have flexibility in choosing their notification channels
Initially the draft act stated that only email address, telephone number, regular mail or direct meeting can be considered as internal or external notification channel. The Chamber made a proposal to allow other solutions to be used as the notification channel, for example an online platform or any other application. It is important that the notification channel would allow sending information in a way that ensures confidentiality, but the law should not establish too strict limits for companies when choosing the notification channels.

The Ministry of Justice heard the Chamber’s proposal and changed the wording so that it would be technology neutral. Now the draft act states that the channel created for receiving the violation notification must allow sending of the violation notification in writing, orally or both, but the list of specific notification channels is no longer set out in the draft act.

Group companies can establish a common notification channel
The draft act now includes a provision proposed by the Chamber that allows group companies sharing or jointly managing internal notification channels. Previously, the draft act stated that the notification channels can be shared only by companies that have up to 249 employees, but there was no exception for group companies.

Conditions for protecting the person notifying of a violation are clearer
According to the draft act, one of the conditions for receiving protection for the person notifying of a violation is that at the time of notifying of the violation, the person has good reason to think that the violation has commenced or it has been finished. The Chamber asked the Ministry of Justice to clarify in their explanatory memorandum, in which cases does the new law protect the person notifying of a violation and in which cases not. The Ministry of Justice has added several examples to the explanatory memorandum.

Previously it was unclear that if, for example, a person hears from an acquaintance or they have been given an anonymous tip that their employer is violating environmental standards, and the person notifies the public or a state authority of if, can the person be protected then as a person notifying of violation. The explanatory memorandum now clearly states that if the information that the person has heard is not thorough and fact-based and the person sending the information is not reliable, the person will not be protected as a person who has notified.

Disclosing excess information is not allowed
The Chamber of Commerce asked the Ministry of Justice’s explanation on the situation where a person has the right to notify of violation and receive protection, but they also disclose excess information, e.g. trade secrets without good reason. In terms of that, the Ministry has updated the explanatory memorandum and confirmed that if the notifying person has disclosed business secrets that are not related to violation or are only indirectly related to violation, the new law will not offer the notifying person protection and the employer has the right to request from the employee contractual penalty agreed on in the employment contract for disclosing confidential information.

List of repressive measures not included in the draft act
Previously the draft act stated specific measures that a company is not allowed to take against the persons who have notified of a violation and who are protected by the new law. For example, the draft act stated that employers are not allowed to terminate the notifier’s employment contract, demote them, prevent their promotion, decrease their salary or apply disciplinary punishments. The draft act no longer includes such list.

The draft act has kept only the general principle according to which direct or indirect work-related actions or inaction are not allowed against the notifier as a result of notifying of a violation and which cause or may cause unreasonable damages to the notifier. It is forbidden to apply repressive measures, attempt thereof or threatening with such measures. Thus, the wording of the draft act is now more general, but its contents have not changed, because it is still not allowed to apply the repressive measures that were previously listed in the law.

Notice of violation can also be sent to a manager
While the initial version of the draft act stated that a person can notify of a violation through an internal notification channel, external notification channel or by disclosing to a public, a fourth option has been added – notifying a manager. This means that if a person notifies their direct manager or any other manager of their concern, the draft act will protect the notifier also in this situation.

New law to enter into force on 1 June 2022
While initially, the act was supposed to enter into force already on 17 December of this year, the state wants to enforce it on 1 June 2022. The requirement that employers with 50-249 employees must create an internal notification channel, will still enter into force on 17 December 2023.

Should you have any questions or proposals regarding the draft act, let the lawyers of the Chamber know by writing to juristid@koda.ee.

The previous version of the draft act can be read HERE and the Chamber’s proposal is available HERE.