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Protect’s Head of Advocacy and Advice, Bob Matheson was interviewed by South Korean TV channel, EBS (Educational Broadcasting System) for their weekly programme ‘Documentary insight’ to discuss how Protect supports whistleblowers, our work with organisations, the whistleblowing legislation in the UK, and the new EU legislation which will be introduced by 2021.

Whistleblowing cases in South Korea are received through Anti-Corruption & Civil Rights Commission (ACRC). After receipt the cases, related departments with investigated rights will judge whether it is affected public interest or not. Then they will notify the respondent.

In South Korea, people tend to consider whistleblowers as traitors without loyalty for speaking out, and Bob was asked what could be done to change this social perception, and his suggestions to improve whistleblowing in South Korean society.

He said, “Education and familiarisation. A lot of the negative views towards whistleblowers come from a place of misunderstanding. Whistleblowers are in fact, integral to making our hospitals safe, our financial institutions stable, and our governments uncorrupt. Once what is at stake is made clear, who can really argue with that?

Further, because the public will generally only see the exceptionally small number of whistleblowers who end up raising concerns with the media, there is a perception that this is the start and end of the process, rather than the last step in a long painful journey of trying to bring the issues to your organisation’s, or the relevant statutory authority’s, attention. Our research suggest that 8% of the population have raised whistleblowing concerns in the last two years, which amounts to over 5 million people in the UK alone! Whistleblowers are often thought of as disloyal, and yet the vast majority of individuals who I’ve spoken to are extremely loyal to the aims of the organisation.

We can only challenge these misconceptions with firstly teaching people, and then showing them differently. By embedding a culture for the large magnitude of day-to-day wrongdoing, we familiarise society with what whistleblowing actually means, and pave the way for societal change.”

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Protect Interim Chief Executive, Jon Cunningham appears in the latest issue of Public Sector Focus discussing why it is vital local authorities have in place strong whistleblowing arrangements.

“Overburdened, under-funded and under-pressure they maybe but now more than ever local authorities need robust whistleblowing procedures as standard good governance – it could help prevent or stop serious wrongdoing as they face the squeeze.

Whistleblowing. It’s a word that can still divide people, but at Protect, we believe whistleblowing is a good thing.  We’re in the business of whistleblowing and for the past 25 years have been helping people speak up over workplace concerns.  Fraud, patient safety, food safety concerns and governance  in schools – the concerns we advise on are diverse. We also support organisations create best practice whistleblowing cultures. It’s a no-brainer – your staff are the eyes, ears and often the beating heart of an organisation and staff are very often the first to become aware of any risk or wrongdoing in the workplace.

Protect, formerly known as Public Concern at Work,  supports around 300 organisations from all sectors, the financial services sector, NHS, construction, transport, retail, education, as well as many local authorities. Our Business Team offers training, consultancy, policy reviews, and ongoing support through access to our Protect advice line for an organisation’s employees who wish to raise a concern externally. Sadly, many organisations come to see the benefit of our work and how whistleblowing works as a risk governance tool only after a particularly unsavoury scandal has hit the press.”  Read the Public Sector Focus article in full

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Is the revelation about Government splits over the role Huawei should play in the rollout of 5G technology within the secretive National Security Council (NSC), an act of reckless leaking, or brave whistleblowing?

For many inside and outside of Government, this was a dangerous and corrosive leak. This was the first time the press has been given information about the discussions within the NSC, a body of senior minister and security officials where they informally and openly discuss national security issues. Its discussions and decisions are kept secret, protected by the Official Secrets Act 1989 (OSA) which makes disclosure of certain sensitive information without authority a criminal offence, and the NSC bars members from having mobile phones, computers or any recording devices during meetings.  Jeremy White, Secretary of State for Culture and member of this committee, put the case against the leak, very well in Parliament:

“This (the leak) was unacceptable, and it is corrosive of the ability to deliver good government, which is something for which we must all take responsibility. In discussions of this kind, people are entitled to express whatever views they wish—and they do—but once the discussion has been held, collective responsibility requires that people do not repeat their views publicly, and they certainly should not discuss matters that have a security implication of this kind.”

What’s more there was more then a whiff that the motivation for the leak was less about the public interest and more about leadership ambitions in a Government who have struggled to keep cabinet discussions confidential.  The response from the Labour party, former Government Ministers and former security officials has been to call for an enquiry to discover who leaked the information, with some even saying the guilty party should be prosecuted.  Underlining this argument is the idea that this was a leak, revealing damaging information publicly, for political means and so lacked any public interest.

The case for this being an act of whistleblowing rests on the argument that the decision made over Huawei should be made in the open.  There is the argument about our future relationship with China and the impact on vital technology and there has been a lot of public concern expressed over this decision.  There is a public debate on the issue where the decision is being made behind closed doors. This is not revealing UK defence capabilities or confidential negotiations with a foreign country.  This is an attempt  to make a secret decision on something that needs public airing.

The Backbench MP Anne Main in Parliament best summarises the argument when she said:

“I am a little concerned that the leak may be trivialised by saying that it is as a result of someone’s leadership campaign. I am more concerned that it may be as a result of whistleblowing, because the process is so concerning to someone that they have felt the need to break the bond of trust that has existed for so long.

I accept that the review is going on at the moment in great secrecy, but since this has now been brought out into the open, can my right hon. and learned Friend assure the House that absolutely every consideration will be given to all the concerns that have been raised by hon. Members here today about both our relationship with countries such as Australia and our cyber-security and national security? Importantly, will he make sure that some concept of future deals with China is not colouring what we must now have absolutely at the forefront of our mind—the safety of the British public?”

I’ve so far laid out the arguments put forward for whether it was a leak or an act of whistleblowing which has been based on whether there was public interest in the disclosure.  Yet if there is a leak enquiry, if this uncovers the leaker and this led to a prosecution under the Official Secrets Act (OSA), the distinction between leaking or whistleblowing will not even enter the legal arguments before the jury.

This is due to the OSA lacking any kind of public interest defence, in fact it’s a strict liability offence meaning that the motives or reason are irrelevant to whether someone’s guilty, what’s relevant is whether the disclosure was authorised or not .  Here it doesn’t appear to have been authorised. However, if someone was so concerned about a decision they felt compelled to blow the whistle, knew they lacked authority to do this, then the public interest in the information being revealed is totally irrelevant.

A final thought on the situation, it would be surprising and a first if a Minister was uncovered as the source of the leak and then prosecuted under OSA.  This is not something that happens: all of the prosecutions under the OSA have been against government officials, not politicians.  Some cases may succeed, others result in an investigation with no conviction (Christopher Galley), in others, the case has collapsed (Katharine Gunn). As the media has noted Ministers have been disclosing details of confidential cabinet meetings for months to the press as Theresa May’s administration loses authority on a seeming daily basis.  Theresa May has issued warnings on this behaviour but has not investigated, yet this level of leak appears unprecedented. We’ll see if the noise and fury produces a prosecution, but I can’t help but feel that if an official was suspected of being responsible for the disclose they would almost certainly be prosecuted.

By Head of Policy, Andrew Pepper-Parsons

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The Government has brought forward proposals to tackle NDA (non-disclosure agreements) in harassment and discrimination cases following the #MeToo movement. Our view is these proposals will make just a small dent in improving common practices in concluding settlement agreements. The proposals address only a small part of the wider problem of sexual harassment in the workplace.

The government’s main proposal on confidentiality obligations is to prohibit any agreement from stopping the worker taking information to the police. Protect has highlighted that this is not only unambitious but also puts the focus in the wrong place. The police would only get involved if the allegations met the threshold for criminal behaviour. The majority of these cases are not about criminal law but about rights in equality law, where the police have no role.

The difficulty presented by confidentiality in harassment cases is that they prevent workers from detecting a culture of harassment in the organisation. Victims are prevented or discouraged by draconian confidentiality clauses from raising concerns to an appropriate body.

To tackle this, Protect has recommended  the government prohibit agreements from stopping a worker making a disclosure about harassment or discrimination to the Equality and Human Rights Commission (EHRC). The EHRC is already tasked with ensuring compliance with laws on discrimination and harassment. Giving it this specific role as a receiver of information about discrimination and harassment would allow it to piece together individual reports and take action where necessary.. The important point is that workers should feel comfortable sharing their experiences with a body that is able to take some action against widespread breaches of the law.

It seems others share our view to take stronger, bolder actions against exploitative non-disclosure agreements. Last week, the Health Secretary Matt Hancock announced proposals to ban non-disclosure agreements in the NHS. While we welcome the government’s concern for non-disclosure agreements that may stifle whistleblowing, it must be recognised that this is only a small part of the picture. A successful whistleblowing scenario is one in which the worker can raise the concern and keep their job. The cost to the whistleblower of raising concerns should not be that they must leave their employer.

This highlights the need for government to look more closely at prevention, tackling workplace harassment and discrimination before it arises. We would urge the government to adopt the recommendation of the Women and Equalities Committee to introduce a requirement on employers to prevent and address sexual harassment at work. By the time a worker comes up against confidentiality clauses, much of the damage has already been done.

Government consultation: Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination

Protect’s consultation response

By Protect adviser Dugald Johnson

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Protect is calling on the government to adopt new EU whistleblowing legislation, or risk UK whistleblowers being left behind with out-of-date legislation.

As the EU’s Whistleblowing legislation passes its final hurdle in the EU Parliament today (April 16), Protect, wants the same gold standard protections introduced in the UK. We want the government to keep its promise that workers won’t be affected negatively whatever happens with Brexit and strengthen the protection of UK whistleblowers -especially those currently not protected if they speak out on public interest concerns.

The EU legislation follows campaigning by the Whistleblowing International Network (WIN), of which Protect is proud to be a co-founder, and others. The ground-breaking legislation must become law across all EU members by May 2021.

Protect’s Senior Legal Consultant, Cathy James, congratulated the hard work of civil society, but warned against the danger of UK whistleblowers being left behind.

“We want the government to adopt key elements of the EU legislation to ensure more whistleblowers feel safe to speak up and stop harm. As the UK’s leading authority on whistleblowing we hear from far too many whistleblowers – volunteers, self-employed workers, non-executive directors, and cases such as district judge Claire Gilham which we are intervening in – who find they are not adequately protected” she said.

Cathy added, “The broad reach of the directive, including immunity from civil action for those who blow the whistle responsibly and the call for funded legal and other support will level the playing field.  If not adopted here, UK whistleblowers will find the legal protection has become a cardboard shield.”

Five key elements for UK government to adopt from EU Directive:

1. Broadening the whistleblowing protection to include more people including volunteers, Non-Executive Directors, self- employed contractors and job applicants.  Under the EU Directive a much broader range of people will be able to claim protections from detriment or dismissal if they whistleblow.  Crucially, the directive will also cover job applicants – addressing the difficulties faced when a whistleblower is “blacklisted” and labelled a trouble maker.

2. A requirement on all organisations with more than 50 employees to introduce internal channels and procedures for whistleblowing, including protecting their confidentiality and providing feedback.  There is currently no obligation on organisations (outside of regulated sectors such as Financial Services or the NHS) to have any whistleblowing arrangements.  This simple change would make it easier for workers across the UK to find a route to speak up and stop harm sooner, whatever sector they work in.

3. New provisions to protect whistleblowers from liability.  Under the EU directive, there will be a defence for whistleblowers for incurring civil liability of any kind, provided that they had reasonable grounds for whistleblowing.  People will be able to blow the whistle without fear that their employer will come after them for breach of confidence, defamation, data protection and copyright breaches among others.

4. Introduction of legal aid for Whistleblowers.  Currently there is no legal aid for whistleblowers seeking to bring employment claims (except when discrimination matters are also engaged). Too many whistleblowers cannot find legal advice or representation which allows them to take their claims to tribunals – and access to justice for these groups is denied,

5. New standards for regulators. The directive requires member states to have regulatory bodies who engage with whistleblowers in the industry, sector or profession they regulate.  These standards should include how these regulators receive whistleblowing disclosures, maintain confidentiality, provide feedback and follow up on any disclosures made.

Strengthening current whistleblowing law should make it easier for the likes of District Judge Claire Gilham. Her case (which Protect is intervening in) goes to the Supreme Court in June to decide whether judges are able to blow the whistle.

District Judge Gilham said, “People may be surprised to learn that Justice does not currently offer specific structural protection for whistleblowers, which other sectors such as financial services and the NHS are obliged to. The Ministry of Justice are asserting before the Supreme Court that Judges are not either currently within the scope of whistle-blowing because they are not workers, so the new EU directive could change this for Judges as it would for the self-employed, NEDs, volunteers etc.”

She added, “My case, seeking statutory protections for whistleblowing in the public interest by Judges in order to protect the independence of the judiciary might well have been easier to pursue under the proposed new EU law.”

Protect will be writing to MPs and prospective MEPs urging these five key elements of the EU Directive to be pushed through.

Read our EU-Directive-APRIL-2019

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Please note, our advice line will be closed from midday on Wednesday April 3 until Friday April 5 as we move offices.

Moving day is 4 April to new sustainable offices at The Green House, Cambridge Heath Road, London E2 9DA.

Protect’s new home is a shared space for charities and not-for-profit organisations in London. 

Our website, telephone numbers (including freephones you may have) and bank details are not changing.

The advice line will re-open on Friday April 5.

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The APPG for Whistleblowing was set up on 10 July 2018 after a campaign by WhistleblowersUK to expose the positive benefits of making speaking up safe. We captured the imagination and support of our Politicians using cases that we had worked on to demonstrate not only the value to the economy but comprehensive value of this source of intelligence to society. Whistleblowers, or people who speak up, are valuable human capital. By engaging the imagination and the possibilities of reimagining the role of the whistleblower – as a vital element of a transparent society – we have been able to attract and engage a wide and influential cross party group of politicians. These Politicians have recognised that not only the UK but the world need to take advantage of this resource. 

The APPG has demonstrated its commitment to its principles by putting whistleblowers not only at the top of the agenda but at the heart of the APPG by appointing WhistleblowersUK as its secretariat. An organisation led by and largely run by whistleblowers across many sectors. The aim of the APPG is to develop world class, global standard whistleblowing legislation, because protection should not start and end at our borders and to succeed we all need universal cooperation.

The APPG has an ambitious work plan where phase one is coming to a close and will result in the publication of our first report in June. The data will represent the voice of the whistleblower as it originates from the call to evidence comprising the hundreds of whistleblowers who participated through our survey, group sessions, emails, social media and 1:1’s. The most prolific sector is health and social care comprising nearly 50% of the responses. The most widely expressed concerns are that the legislation does not work and that too many people are excluded leaving many people not only vulnerable but with no obvious place to seek protection. The biggest stated barrier to whistleblowing is fear of retaliation. The greatest concern is that the issue which led to the whistleblowing is not addressed. These issues are echoed across all sectors. The report will reveal all…

Not distracted by Brexit or the drafting of the report, we have already embarked upon the call to evidence for phase two of our report. The APPG are meeting regulators, professional bodies and trade unions in a series of calls to evidence. So far we are both impressed and challenged by the evidence that we are gathering. Every session, as with the whistleblowers is held in private and with those speaking guaranteed confidentiality. In setting up the sessions in this way we are able to ask and expect answers to challenging questions, and demonstrate the power of a learning not blaming environment. This report will be published in January 2020.

Phase three will be a call to evidence for Employers, Academics, the legal profession and judiciary and MP’s. This report is planned to be published in June 2020.

Take the survey

If anyone would like to assist or give evidence we welcome their support. Please support the work that we are doing via our secretariat www.wbuk.org

By CEO of WBUK Georgina Halford-Hall

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Zelda Perkins, former assistant to Harvey Weinstein, discussed non-disclosure agreements in a conversation with equality barrister Karon Monaghan QC at UCL recently. Protect adviser Dugald Johnson went along to hear the discussion.

Zelda began by recounting how, after persistent sexual harassment, she and a colleague resigned from Miramax, Weinstein’s film company. She described that the “journey of real abuse” began in the bewildering legal process that followed.

On finding a lawyer, she and her colleague were promptly told that they had no real option but to reach a settlement agreement with Weinstein. If they pursued a legal claim it would simply be their word against his. Following gruelling negotiations with Weinstein’s lawyers, Zelda was cajoled into an opaque agreement with draconian confidentiality clauses. Not only was she not allowed to discuss the harassment or existence of the agreement with anyone else, if called to give evidence in a criminal trial, she was to use her “best endeavours” not to disclose information about the harassment. The lawyers did not even let her keep a copy of the agreement.

Zelda’s experience has led her to take the view that NDAs should be banned in cases of workplace harassment and discrimination. She recognises that, at present, a confidentiality clause benefits the victim too. It gives them some reassurance that the allegations will not be used against them in future, such as in finding new employment. But Zelda maintains that the culture around sexual harassment will not change until confidentiality is an option for neither  the perpetrator nor the victim. As long as the instinct of lawyers is routinely to agree confidentiality, perpetrators will continue to escape without scrutiny and victims will feel they have to hush it up for the sake of their career.

An outright ban would pose some problems for victims, at least initially. One likely effect is that employers will be less inclined to agree settlements rather than push the dispute to tribunal. Confidentiality is an important benefit of agreeing a settlement out of court. This effect would be likely aggravated by poor access to justice: employers are able to exploit the fact that many employees do not have the means to bring a claim against them. Both Zelda and Karon were clear that improving access to justice and to mediation must be a priority. The unavailability of confidentiality may also deter victims from coming forward.

Nonetheless, Zelda makes a compelling case for banning NDAs in these circumstances. One of the main issues with confidentiality clauses is that they fragment women’s experiences of a widespread social phenomenon, namely, workplace sexual harassment. Rather than create the conditions for women to share their experiences with each other, build solidarity and take collection action, the law individuates victims and facilitates their being silenced.

One contributor to the Q&A event at UCL, noted that abuse of NDAs highlights a conflict between criminal justice and contract law. While criminal justice depends on the gathering and presentation of evidence, contract law allows parties to agree obligations that prevent that evidence coming to light. That endemic workplace sexual harassment has gone unchallenged for so many years, only highlights the problems posed by employment law rooted in principles of contractual freedom. While non-disclosure agreements are routine in commercial contexts, are they so appropriate in cases of workplace harassment and discrimination, where there are generally significant power imbalances?

It is clear that lawyers must take more responsibility for equipping victims with full knowledge of their rights and options. Protect has called for clearer wording in the whistleblowing legislation and more robust duties to advise employees fully. Regulators must also take stronger action against lawyers who act unethically. But what Zelda emphasises most is the need to change stubborn instincts – of lawyers, first and foremost, but also of society at large – to shroud these issues in secrecy.

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Protect welcomes the Kark Review recommendations to give more teeth to the Fit and Proper Persons Test (FPPT) –  which is in place to ensure senior staff responsible for quality and safety of care are fit for their roles.

Led by Tom Kark QC, the review, commissioned by the government, looks at how effective the Fit and Proper Persons Requirement is in preventing unsuitable staff from being redeployed or re-employed in the NHS, clinical commissioning groups, and independent healthcare and adult social care sectors.

The Kark Review recommendations include:

  • All directors should meet certain professional standards to sit on an NHS board
  • A central database should be created that holds key information about qualifications and employment history
  • References should be a mandatory requirement for director posts
  • The FPPT should apply also to commissioners and arms-length bodies
  • A power should be created to disbar directors for serious misconduct
  • Further work should be done to assess the Test in social care contexts

Recent incidents in a number of NHS trusts have made it clear that ensuring effective management must be a priority. Directors, particularly when it comes to whistleblowing, must take the lead in instilling an open and supportive culture in which staff feel encouraged to speak up about concerns.

The fit and proper person regulation (FPPR) requirements came into force for all NHS trusts and foundation trusts in November 2014 following a number of scandals in the sector, to promote effective management. The Test requires NHS Trusts to assess newly appointed Directors against a number of criteria. A Trust must provide information to the Care Quality Commission (CQC) and declare that the individual meets the criteria. At present, individuals who do not pass the FPPT are listed on a register which places restrictions on their work.

The report discusses the relatively low rate of recorded whistleblowing in the NHS for a sector of its size and refers to a number of employment tribunal judgments which highlight a tendency in some NHS trusts to conceal concerns. The report remarks that the NHS’s understanding of ‘Speaking Up’ covers a broader range of disclosures than those which earn protection under whistleblowing legislation. Protect takes the view that workers and their managers need clear information and understanding of whistleblowing protection. For example, disclosures about bullying at work – though an important part of the speak-up landscape – do not necessarily qualify for legal protection against dismissal or detriment.

We share the concern expressed by Kark that some standard aspects of settlement agreements often obstruct transparency about a director’s past conduct. Confidentiality clauses and bare-bones agreed references can make it difficult for a prospective employer to make an informed assessment of a candidate because they prevent sharing of information between NHS bodies about previous misconduct, such as mishandling of whistleblowing.

In the context of those challenges, the report recommends that references be required to contain certain mandatory information. This is to be informed by a new central database of key information about all NHS directors, possibly housed within NHS Improvement. This would go some way in addressing the obstacles posed by settlement agreements.

In the context of Kark’s comments on whistleblowing in the NHS, it is encouraging that the NHS standard contract for 2019/20 includes an express commitment that nothing in any contract, such as a settlement agreement, will prevent a worker from raising concerns about quality or safety of care provided by their employer. This sits alongside provision that nothing will prevent disclosures protected by the Employment Rights Act 1996.

A key report recommendation is that certain behaviours amounting to “serious misconduct” should lead to temporary or permanent disbarment from a director post. These powers go beyond the current possible actions of the CQC if a director fails the test, which extend only to refusing the director’s appointment or working with a Trust to improve governance. This sort of enforcement power is crucial in order to make the FPPT a more meaningful endeavour when serious misconduct comes to light.

Protect welcomes the recommendation that suppression of whistleblowing or victimisation of a whistleblower by any director who falls under the regulation of the FPPT be considered “serious misconduct”. This is welcome recognition of the central importance of whistleblowers in ensuring high standards in the NHS.

Read the Kark Review in full

By Protect adviser Dugald Johnson

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Whistleblowers exposing illegal conduct or abuses of law in their workplace will soon have nothing to fear when revealing the truth, thanks to a new EU Directive to protect whistleblowers from retaliation.

The EU law, once implemented, will see protection for whistleblowers in the public and private sector, including civil servants, the self-employed, shareholders and people belonging to management, administrative or supervisory bodies, volunteers and paid or unpaid trainees, people working for contractors, subcontractors and suppliers, people uncovering breaches during a recruitment process and finally, ex-workers. Colleagues or relatives affected by retaliation, will also be protected as well as ‘neutral people’ who provide confidential advice to whistleblowers.

The Directive, once made law, specifically protects people reporting on breaches of law or abusing the spirit of EU laws in a wide range of important areas such as public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems, protection of the financial interests of the Union, breaches of internal market rules, including competition and State aid rules or tax avoidance issues.

The agreement comes almost two years after the Greens/European Free Alliance (EFA) Group in the European Parliament drafted its own model EU Directive to protect whistleblowers across the European Union, but its not been easy. Several European governments wanted to make the reporting process as strict as possible so that whistleblowers would only be protected if they reported internally first, unless they could fulfil one of the unclear exceptions that would justify reporting to regulators.

Who has to set up channels for whistleblowers to report?
Companies with more than 50 employees are obliged to set up channels and procedures for whistleblowers to report safely. Public bodies are also obliged to set up channels, but exceptions can be provided for municipalities with less than 10,000 inhabitants or less than 50 employees. Small municipalities can also pool resources and share channels or procedures for reporting.

The next step is for EU governments and Members of the European Parliament to rubber-stamp the agreement within the next few weeks, with Parliament adopting the final text in April.

For more information on the European Commission’s original proposal, including its strength and weaknesses, read the Greens/EFA briefing published at the time.

For a summary of the Parliament’s position on the text, visit: https://www.greens-efa.eu/en/article/news/european-parliament-pushes-for-strong-protection-for-whistleblowers-in-landmark-vote/

For a comparative analysis of the Council’s text, see: https://www.greens-efa.eu/en/article/news/whistleblower-protection-around-the-corner-as-eu-governments-agree-on-their-position/

 

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