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Business Must Prove Whistleblower Treatment is Not Retaliatory

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In a move to strengthen whistleblower protection laws, a growing number of countries are shifting the burden of proof from whistleblowers to businesses accused of retaliating against them. This change aims to prevent companies from using their power and resources to silence employees who speak out against wrongdoing.

The Current State of Whistleblower Protection

Under current laws, whistleblowers must prove that they were treated adversely because of their reporting activities, a task that can be daunting and often requires significant resources. In contrast, businesses are only required to demonstrate that the adverse treatment was not related to the whistleblower’s reporting activities.

Criticisms of Current Laws

This approach has been criticized for creating an uneven playing field, where companies have more access to information and evidence than whistleblowers.

The European Union’s Lead on Whistleblower Protection

The European Union has taken a lead in this area by adopting a directive that reverses the burden of proof on retaliation against whistleblowers. The directive requires businesses to prove that they are not treating whistleblowers adversely because of their reporting activities. This approach is expected to encourage greater transparency and accountability among companies.

Japan’s Whistleblower Protection Laws

In Japan, where whistleblower protection laws have been criticized for being too weak, there is growing pressure to strengthen whistleblower protections. A recent study found that the country’s Whistleblower Protection Act has failed to effectively protect whistleblowers from retaliation, with many employees reporting adverse treatment after speaking out against wrongdoing.

Recommendations for Strengthening Whistleblower Protections

Some experts are calling for more severe sanctions against businesses that retaliate against whistleblowers. The EU and US have already imposed criminal penalties on companies found guilty of whistleblower retaliation. In Japan, there is a need for similar measures to be introduced to deter companies from engaging in retaliatory behavior.

Protecting Whistleblowers in Supply Chains

In addition to strengthening whistleblower protections, there is also a growing recognition of the importance of protecting whistleblowers in supply chains. A recent study by the Japanese government highlighted the need for greater transparency and accountability in supply chains, particularly with regards to human rights.

Conclusion

As the world continues to grapple with complex issues such as corruption and abuse of power, it is essential that whistleblower protection laws are strengthened to encourage greater transparency and accountability. By shifting the burden of proof from whistleblowers to businesses, we can create a more level playing field and prevent companies from using their power to silence employees who speak out against wrongdoing.

Conflict of Interest: The author declares none.

Financial Support: This article was funded by the 2022 Research Fund of the Seoul National University Asia-Pacific Law Institute, donated by the Seoul National University Law Foundation.