Whistleblowers in the private sector now subject to protection

Amendments to the Protection of the Whistleblower Act (Chapter 527 of the Laws of Malta) (the “Act”) have come into force on 24 December 2021 by means of Legal Notice 500 of 2021 which brought into force the Protection of the Whistleblower (Amendment) Act, 2021.

The scope of the amendments is that of transposing into Maltese law of 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 (also referred to as the Whistleblower Protection Directive) (the “Directive”).

Accordingly, public and private entities falling within the scope of the Act are obliged to implement the requirements introduced by the amendments.

Most notably, the definition of “employer” has been widened and now includes within the scope of the Act any organisation within the private sector with 50 or more workers. Qualifying private companies will now also be subject to the obligations set out in the Act.

By way of exception, organisations in the private sector with fewer than 50 workers may also be subject to the obligations established in the Act if this is deemed necessary following an appropriate risk assessment.

The recent amendments provide additional protection to whistleblowers inter alia by extending protection under the Act to various categories of employees, including shareholders, directors (including non-executive directors) and paid or unpaid trainees.

Moreover, an additional layer of reporting has been introduced in addition to internal and external disclosures, being public disclosures. The list of acts against which whistleblowers are protected has also been widened and now includes, for instance, suspension, lay-off, dismissal, demotion or withholding of promotion, withholding of training, negative performance assessments, coercion, intimidation, harassment and psychiatric or medical referrals. The range of wrongdoings which may be reported under the Act has also been widened. These include, the endangerment of the environment or health and safety, miscarriages of justice, bribery, corrupt practices and breaches of laws and regulations dealing with the protection of privacy, consumer protection and prevention of money laundering and financing of terrorism.

Although anonymous disclosures are still not protected under the Act, the Act now permits the receipt and processing of anonymous disclosures in determining whether improper practice has occurred. Furthermore, the Act now provides that protection is to be given to whistleblowers who make an anonymous disclosure and who are subsequently identified and suffer retaliation, provided that the disclosure satisfies the necessary conditions set out in the Act.

All private employers falling within the scope of the Act are required to establish internal procedures for receiving and dealing with information about improper practices committed within or by such organisation.

For more information, please do not hesitate to contact Kurt Portelli on kurt@davidzahra.com.