Proceed with a complaint
As we know, the Whistleblowing Directive It came into effect last year (December 2021). Being about to complete a year since it took effect in our legal system, said directive has not yet been transposed by the Spanish Government, although we are on the verge of doing so after the bill recently published in the Official Gazette of the Cortes (Congress of Deputies). So all this suggests that we will have our own law, possibly, in the first half of next year.
There are many questions that arise with the implementation of this new law, not so much by law as by what it “legislates”; implement a technological tool in all Organizations, designate those responsible for said tool in which the Complaints Channel either Ethical Channel, provide accessibility to it not only to the workers of the Organization, instruct or investigate the “reported” or revealed facts, resolve such facts through an Ethics Committee that must be established in the majority of companies except those that by their size or condition already had said organ, and many others. But in this short article, I will stop to reflect on the ways to report: confidentially or anonymously.
Whistleblowing
Both the directive and the bill, both texts, contemplate these possibilities of transferring an act contrary to the law, whether internal (self-regulation) or external. The ultimate goal of the Bill, in line with the directive, is to fully protect informants against any type of retaliation or measure taken against them as a result of having reported an illegal act.
And retaliation can not only be limited to the workplace, but also to the personal sphere, even to third parties linked to the informants themselves, such as family members. Although in the text of said Bill, specifically in its article 36, “The exception is the case in which said action or omission can be objectively justified in response to a legitimate purpose and that the means to achieve said purpose are necessary and appropriate.", which directly clashes with the spirit of the text in question, and at the same time of the directive being transposed (protection of the whistleblower or informant). If it is retaliation, it is not justified under any circumstances.
Without a doubt, this aspect of avoiding retaliation is very present when a person considers the possibility of reporting, confidentially or anonymously. The most likely thing, and I say this without the slightest experience of ever having made a report, is that when someone makes the decision to report, they will consider whether to do so anonymously or confidentially, weighing the possible consequences that their action could bring. And with complete certainty, the shadow of retaliation looms, at least, in everyone's imagination.
I am inclined to think that, in the majority of cases, anonymity will be chosen, which would demonstrate that the legislator has taken into account the jurisprudence of our Supreme Court, which already admitted in a ruling in 2013, with the speaker being Judge Marchena Gómez, convert this document into the source of knowledge that, in accordance with article 308 of the LECr, makes it possible to begin the investigation phase”.
In my opinion, the Courts are aware of the fear that reporting produces in people, and also that anonymous reporting is a “not very brave” way, but they have considered that it is preferable to end up knowing about irregularities in the environment of the Organizations that , if they had not been communicated, even through this means of anonymity, they could have ended with bankruptcies, company closures, layoffs, etc. that would have affected even those who did not report.
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