EU Whistleblowing Directive — the burden of proof

The burden of proof — what the EU Whistleblowing Directive says about it?

Just as a quick starter - the burden of proof is the obligation to provide evidence that supports the accusation in the court. If you're a witness or a bystander who wants to report on what you saw, you'll need evidence. And it really depends on the case how much evidence you'd need. 

Why does the burden of proof appear in whistleblowing?

If the case is severe enough, it will most likely lead to legal actions. And when it happens, the court will need the evidence to issue the ruling. Regardless of the type of the report - anonymous, confidential or public, the whistleblower has to submit sufficient evidence for the case to be opened and investigated. The burden of proof is simply the obligation to prove something happened - here, the burden of proof is on the whistleblower.

 At least two persons are always involved in the case - the one who reports and the accused. And it's the whistleblower who first has to prove that something happened in the company and then prove that the accused person took some actions to stop the whistleblower from reporting (if it happened).

Something has changed since 2019 in the burden of proof.

Imagine the most typical path of the whistleblower. Paul is a whistleblower in company X - he witnessed his supervisor talking to someone about selling the company's products for a discounted price. Paul assumed it's a case of nepotism and reported the matter to the HR department - shortly after, Paul was fired without an explanation. Paul filed a lawsuit against his supervisor for retaliation. What should happen next?

Normally, Paul should have collected both the evidence of fraud and the evidence against his supervisor to prove that retaliation did happen. The burden of proof, therefore, was totally on Paul.

However, after the EU Whistleblowing Directive was released in 2019, the burden of proof regarding retaliation shifted to the accused person.

Every time someone retaliates against the whistleblower or his/her family members, it is the accused person who has to give evidence that it didn't happen. 

 You can find more information about the new regulations for whistleblowers under the tag EU Directive.  

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