Failing to blow the whistle: the EU & Sexual Harassment
Is the EU Whistleblowing failing to fight against Sexual Harassment in the Workplace?
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Despite the hopes raised by the EU Whistleblowing Directive, the scope of protection provided to whistleblowers raises some concerns about its inclusiveness, as those who have been targeted with sexual harassment, are omitted from the discussion.
2021 marks the final deadline for all EU Member States to implement the minimum standards imposed by the newly adopted EU Whistleblowing Directive. And it has reminded us that despite the #MeToo movement shedding light on the issue of sexual harassment in the workplace, there is still a long way to go before eradicating this unethical behaviour once and for all from the corporate world.
The EU Directive 2019/1937 on the protection of persons who report breaches of Union law (hereinafter called “EU Whistleblowing Directive”) was adopted on the 23 October 2019. With it, the EU raised hopes of the possibility of providing a set of minimum standards for whistleblower protection against potential retaliation and allowing them to blow the whistle safely when noticing malpractices, both in the public and private sector. However, in the present Directive, one flagrant element is missing: those who experience sexual harassment.
When looking closely at the definition of what constitutes whistleblowing, the EU Whistleblowing Directive essentially focuses its subjective scope of application on breaches that fall under the scope of EU law. This ranges from product safety and compliance, food safety and public health, to consumer protection, yet all without including sexual harassment.
The failure to include sexual harassment within the Directive itself is a shortcoming with alarming consequences not only at the individual level for those affected fearing retaliation and other forms of reprisals, but also for the advancement of gender equality and integrity in the workplace more broadly.
Under the current EU environment, countries diverge in their definition, level of protection, as well as action, when it comes to situations dealing with sexual harassment in the workplace. To this extent, the EU Whistleblowing Directive would have been a great opportunity to take the lead on EU cooperation by setting up common frameworks and channels to protect employees from abuses of power for sexual gain and gender disparities in the workplace.
One of the novelties of the Directive is the implementation of relevant internal channels in private and public companies with more than 50 employees, as a way to provide a first step within the company to raise concerns, before taking things further if not dealt with in due time and care. Furthermore, in the present Directive the burden of proof is shifted to the company to prove it has taken all the necessary steps to process the whistleblower’s report and claim.
But including those who have actually experienced sexual harassment would have been a huge steppingstone to provide them with consistent protection and ensure that their claims would be correctly processed. As well as more certainty to protection against retaliation or other types of reprisals against them, their family members or any other person involved in the reporting process.
Furthermore, in addition to internal reporting channels, EU Member States have to ensure that reports processed by private and public companies are to be dealt with anonymously as a way to protect the identity of the whistleblower (which was not the case in the pre-EU Whistleblowing Directive setup and therefore partly explains the fear of retaliation).
With all these elements in mind, the lack of clarity provided in the Directive in relation to breaches of Union law is slightly mitigated by the open possibility for any state that is part of the EU to extend their scope of action and protection as deemed necessary, provided each respects the minimum set of standards imposed by the EU Whistleblowing Directive.
Countries like Denmark are currently contemplating the possibility of encompassing sexual harassment in the workplace within the scope of whistleblowing protection, therefore taking this initiative a step further than what is provided by EU law.
The EU Whistleblowing Directive is a first step in providing effective minimum standards of protection to whistleblowers in all Member States of the European Union. However, this common cooperation missed the opportunity to include and therefore blow the whistle about cases of sexual harassment in the workplace.
Despite the possibility left to any Member State to extend the scope of protection if wished, the role of the EU is essential to provide a comprehensive common framework to finally protect those who experience sexual harassment. Rather than act once a wrongdoing and malpractice has happened, preventing such situations to occur in the first place would actually be the best strategy to offer holistic support to employees and provide them with a safe, inclusive and respectful working environment.
Written by: Diane Valat, Research Ambassador at Metta Space
Edited by: Paula Koller-Alonso, Head of Research & Development at Metta Space