Whistleblowing

Who is a whistleblower?

A whistleblower is defined as any employee who makes a disclosure to a whistleblowing reporting officer or a whistleblowing reports unit, irrespective of whether such disclosure qualifies as a protected disclosure or not, under the Act. Furthermore, the Act protects whistleblowers from being liable to civil or criminal proceedings or to any disciplinary proceedings for having made such a report.

“employees in both the private sector and the public administration may disclose information regarding improper practices by their employers or other employees in the employ of their employers … to protect employees who make said disclosures from detrimental action.”[1] 

Improper practices can be of various forms, and employees may wish to report instances of improper acts being carried out, such as a person’s failure to comply with any applicable law, where health and safety rules have not been adhered to and the employee’s health is being endangered, or where there has been damage done to the environment, among others. All corrupt practices and criminal offences, as well as miscarriages of justice and bribery, breaches to consumer protection and competition law, corporate tax rules and any anti-money laundering may also be reported. Hence, the Act is all-encompassing and captures a wide spectrum of what improper practices may be disclosed.

The Protection of the Whistleblower

The Act ensures that those employees (and other individuals) who step forward to expose wrongdoings are shielded from retaliation, meaning that they will not be subjected to any form of detrimental action. If there is sufficient cause to believe that a detrimental action has been taken, or is to be taken, the whistleblower has a right of reprisal by filing an application to the First Hall, Civil Court. The legislation provides employees and other individuals s with the right to report abuses, along with the security that they will be protected by law when such a disclosure is made in good faith. Furthermore, whistleblowers are entitled to receive and have access to all the necessary advice and assistance from the relevant authorities, as well as legal aid and legal counselling in light of any proceedings.

The Act under its First (1^st) Schedule provides an exhaustive list of relevant authorities responsible for receiving external disclosures and for providing assistance to whistleblowers. These include the following:

• Office of the Auditor General;
• The Commissioner for Revenue;
• The Commissioner for Voluntary Organisations;
• The Financial Intelligence Analysis Unit (FIAU);
• The Malta Financial Services Authority (MFSA);
• The Ombudsman; and
• The Permanent Commission Against Corruption.

Protection afforded by the Act is extended to all natural persons working in the private or public sector including; facilitators, third persons who are connected with reporting persons, any legal entities under the responsibility of reporting persons or else works for, and any legal aid in criminal and cross-border civil proceedings. The Act entitles whistleblowers to remain anonymous and only have their identity disclosed upon consent.

Forms of Disclosures

Disclosures can be of four (4) different forms, depending on the nature of the disclosure. Regulated by Part III of the Act, these can be of the following categories:

1. Protected Disclosures are such that the whistleblower has reasonable grounds to believe (this is undefined at law) that the information disclosed was true at the time of its disclosure and that such information fell within the scope of this Act; and the information was disclosed internally or externally, or a public disclosure was made.
2. Internal Disclosures arise out of the organisation’s internal procedures which employers should have in operation for receiving and dealing with information about improper practice committed within or by that organisation. An internal disclosure is a protected disclosure if it is made by an employee[2] to an employer substantially in the manner established by internal procedures.
3. External Disclosures are protected if an internal disclosure[3], in accordance with the organisation’s internal procedures;

• has already been made by the employee;
• has attempted to be made by the employee; or else
• there exists the intention for the internal disclosure to be made but it could not possibly be made by the employee due to the involvement of the head of the organisation in the illicit conduct.

This type of disclosure may be made directly to the Whistleblowing Reports Unit of the authority as provided in the First (1^st) Schedule. In practice, it can be made if the whistleblower believes on reasonable grounds that:

1. the head of the organisation is, or may be, involved in the improper practice disclosed; or
2. immediate reference is justified by the urgency of the matter; or
3. he will be subjected to occupational detriment by his employer if he makes an internal disclosure; or
4. the evidence relating to the improper practice will be concealed or destroyed; or
5. the whistleblower has not been informed on the status of the internal disclosure previously made or it is reasonably evident that no action or recommended action has been taken within reasonable time from making the internal disclosure.

4. Public Disclosures are protected only when an internal disclosure and external disclosure has already been made but no appropriate action was taken in response to the   report within the appropriate timeframes. Additionally, it shall be considered as a protected disclosure if one of the following conditions is fulfilled:

• The whistleblower has reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest, such as when there is an emergency situation or a risk of irreversible damage, or;
• In the case of external reporting, the whistleblower has reasonable grounds to believe that there is a risk of retaliation or low prospect of the breach being effectively addressed due to the particular circumstances.

[1] Chapter 527 of the Laws of Malta, Protection of the Whistleblower Act, Act VIII of 2013, recital;

[2] Please note that ‘an employee’ as defined under the Act includes the following individuals; persons who have entered into or work under a contract of service with an employer, persons who have undertaken personally to execute any work or service for and under immediate direction and control of another person, persons employed in the public administration, former employees, seconded employees, volunteers, candidates for employment, shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, and un/paid trainees;

[3] Which employers have in operation for receiving and dealing with information about improper practice committed within or by that organisation, as explained in point 2;