Whistleblower protection

With the adoption of the Protection of Reporting Persons Act (ZZPri)^[1], it is right that before we go into a description of the protection that the measures in the adopted law establish for whistleblowers, we first ask who whistleblowers are and why it was necessary to protect them not only by law but even by a EU directive.

Who are whistleblowers and why do they need to be protected?

Rules are there to be broken. A saying familiar to children. But it’s not just children who break the rules – in the adult world, rule-breaking, illegal activities and abuse of the law can happen in any organisation.

Let’s stay with children for a moment. We teach children not to be tattletales. Those who reveal rule-breaking are even called narks and there is a saying “snitches get stiches”, waring people not to snitch or there will be reprisals.

Yet, as Orson Welles said, when people accept breaking the law as normal, something happens to the whole society. And it is precisely because of the realisation that it would be wrong to make breaking the law normal, that corruption, fraud, professional mistakes, but also negligence and, consequential violations, can cause serious harm to the public, that it is important to address the breaches. They can only be addressed, if they are reported.

Yet the adult society is even more unforgiving than groups of children. Whistleblowers too often face severe reprisals. They often put their careers, their jobs, health and safety at stake, they can be bullied, targeted for retaliation, and not only suffer themselves, but their whole family suffers. This is why whistleblowers are often discouraged from reporting their concerns.

In order to protect whistleblowers and to create an environment where individuals would dare to expose wrongdoing in an organisation, the European Union has adopted a comprehensive legal framework for the protection of whistleblowers, which is being transposed into the Slovenian legal order by a new law, albeit with a delay of more than a year. it’s important to note that the ZZPri extends the protection from the Whistleblowing Directive^[2] to breaches of non-EU laws: for all breaches of rules applicable in Slovenia.

Who is protected under the ZZPri?

The law protects natural persons who report or publicly disclose information on breaches, acquired in acquired in the context of his or her work-related activities, if they have reasonable grounds to believe that the information on breaches reported was true at the time of reporting and they make a report of the breach before the expiry of two years from the cessation of the breach Not only employees are protected, but also all natural persons in similar relationships outside the employment relationship.

Facilitators and persons connected to the applicant (such as colleagues and relatives) are also explicitly protected.

How does the ZZPri protect whistleblowers?

Prohibition of retaliatory measures

The ZZPri prohibits retaliation. It also prohibits the disclosure of the identity of the whistleblower without their consent. Employers are expressly prohibited from establishing the identity of the applicant if the application is made anonymously.

The ZZPri prohibits any retaliation, including, in addition to dismissal, demotion, change of working hours, delegation of work tasks, non-payment of bonus, low performance appraisal, disciplinary proceedings, bullying, discrimination and other adverse action practices. Threatening or attempting retaliation shall also be considered as a retaliatory measure. Retaliation constitutes a serious offence punishable by a fine of between EUR 5,000 and EUR 20,000 for a company and between EUR 10,000 and EUR 60,000 in the case of a medium-sized or large company. The responsible person of a legal person may be fined between EUR 500 and EUR 2,500.

Support measures

In addition to prohibiting retaliation, the law also provides for safeguards and support measures, such as:

exclusion of liability for disclosure,
judicial protection against retaliatory measures,
free legal aid (regardless of financial situation)
unemployment benefit, and
psychological support.

The ZZPri excludes the liability of whistleblowers for disclosing information, even if the disclosed information is a trade secret, provided that they had not reported or publicly disclosed false information and had reasonable grounds to believe that disclosure of such information was necessary to reveal the infringements.

In the event that the employer terminates the whistleblower’s employment contract for fault^[3](regular or special) and the whistleblower seeks judicial protection against the termination, they are entitled to unemployment benefits as their employment contract had been terminated without fault. The whistleblower is entitled to the allowance until a final decision of the court is taken. The unsuccessful party must reimburse the Employment Service for the benefits paid under the ZZPri.

Who must comply with the ZZPri and within what timeframe must the measures be taken?

The employers with 50 or more employees and employers in certain fields with at least 10 employees, as well as state authorities and self-governing local authorities are obligated to adopt measures under ZZPri.

Employers in the private sector employing 250 or more workers and employers in the public sector must implement the internal reporting channel within 90 days of the entry into force of the law, i.e. by no later than: 23 May 2023.

Companies in private sector with fewer than 250 employees must implement the internal reporting channel until 17 December 2023.

Employers are required to take measures to protect whistleblowers, which are set out in more detail in the ZZPri, and to set up an internal reporting procedure.

Will the safeguards and support measures actually work?

The ZZPri establishes systemic protection for whistleblowers, i.e. natural persons who report or publicly disclose information obtained in their work environment about a breach of law in force in the Republic of Slovenia, and sets out the methods and procedures for reporting, the obligation of employers to establish internal reporting procedures and protection of whistleblowers, and the competence of the Commission for the Prevention of Corruption and other bodies to protect and support whistleblowers and to supervise the implementation of the ZZPri.

Of course, the question is whether such protection will be enough. There is probably still a long way to go before a safe environment for whistleblowers is actually in place. In order for whistleblowers to be truly protected, in our view, they must first be rid of the connotation of tattletales in society, and we must truly internalise the awareness of the usefulness of whistleblowing.

Are you a company that has to put measures in place in accordance with the law, or a whistleblower who fears reprisals? Click here to contact us.

[1] The ZZPri was adopted by the National Assembly on 27 January 2023 and published in the Official Gazette of the Republic of Slovenia on 7 February 2023, so that it enters into force on 22 February 2023.
[2] Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.
[3] The employee’s violations of her/his obligations deriving from an employment relationship.