Whistleblowing in Spain

In November 2018, the Legal Affairs Committee of the European Parliament approved the draft legislation to strengthen whistleblower protection across the European Union. This remains subject to review and approval by the European Council. Please see our article for a high level overview.

Introduction

A number of foreign companies (mainly UK and US multinationals) have implemented whistleblowing hotlines and consequently whistleblowing is starting to increase.

The rules of whistleblowing are determined by internal policies, which must be implemented in accordance with what is established within the law and regulations.

The new reform of the Criminal Code, which came into force on 01 July 2015 and introduced the need to have internal prevention mechanisms and channels in order to reduce or avoid any potential criminal liability for companies or their representatives, the number of companies with whistleblowing hotlines is likely to increase exponentially.

Who is protected?

The law does not provide specific legal protection for whistleblowers so any protection provided to whistleblowers will be as set out in the internal company policy.

Protection in an internal policy should be limited to the company’s employees as subcontracted employees, agency workers or independent contractors do not fall into the area of influence of the employer (in other words, an employer cannot discipline such individuals).

Which disclosures are covered?

The disclosures covered will be those set out in the internal policy and are whatever nature the employer decides, generally any fraudulent and/or unlawful action.

Criminal conduct is typically covered, this includes circumstances in which an employer participates in or allows:

• Unlawful employment conditions
• Illegal human trafficking 
• Discrimination in employment 
• Breaches of unions’ rights and the right to strike 
• Breaches of health and safety at work obligations
• Illegal transfer of employees. 

Procedure for making a disclosure

Any specific procedure that an individual must follow in order to be protected will be set out in the internal policy.

Payment

As there is no legal provision in relation to whistleblowing, the law does not provide for whistleblowers to receive financial compensation for making a disclosure.

Protection available

An individual who makes a disclosure is protected by data protection obligations which mean that his or her identity cannot be revealed without his or her consent.

An employer cannot discipline or subject an individual to detriment because they have made a disclosure unless the accusation has been proved to be false, intentional and harmful.

Contracting out

It is not possible to agree with individuals (in advance) that they will not make a protected disclosure.

Any term of any agreement between a worker and his/her employer (whether a worker's contract or not) is void insofar as it purports to preclude the worker from making a protected disclosure.

Remedies

If an employee has been subject to a detriment, he or she can claim for damages. In addition, if the employee has been unfairly dismissed, he or she will be entitled to reinstatement or to a severance compensation equal to 45 days' salary per year of service (capped at 42 months' salary), from date of commencement of employment up until 11 February 2012 plus 33 days’ salary for each years of service (capped at 24 months' salary) for the length of service accrued from 12 February 2012 up to the effective date of termination.

Whistleblowing policies/arrangements

There is no legal obligation to put in place a whistleblowing policy or arrangement although the new Criminal Code encourages employers to do so in order to avoid liabilities.

Practical implications

Most employers are unaware of the importance of having compliance or prevention program as it has never been a cultural custom. Due to the influence of, mainly, UK and US corporations, companies are now starting to appreciate the importance of establishing whistleblowing channels.

In addition, as companies and their representatives can be criminally liable for the actions performed by its employees, having an appropriate whistleblowing procedure in place can lower or avoid any possible impact or liability.

Other

Workers’ representatives are entitled to be informed if a whistleblowing procedure is introduced.

Our International Employment Issues summary provides a high level overview of key employment issues including whistleblowing, across multiple jurisdictions.