Commentary

C. Relationship of whistleblowing with European/Convention law

Division CIII Whistleblowing
| Commentary

C. Relationship of whistleblowing with European/Convention law

| Commentary

C.     Relationship of whistleblowing with European/Convention law

The domestic laws on whistleblowing are thus entirely home-grown in nature, and are not the result of an EU Directive. It is the case that the EU did eventually produce a whistleblowing directive (Directive (EU) 2019/1937, OJ L 305, 26.11.2019, p. 17–56) but this came too late to have any effect in the UK and in any event was cast in fairly minimalist terms and only applies to disclosure of breaches of EU law. The starting point is therefore that these domestic laws only need to be interpreted as they stand, and not subject to any EU law canons of construction. However, there is one possible caveat to this, but from human rights law under the European Convention, rather than EU law as such. This first arose from the decision of the ECtHR in Heinisch v Germany [2011] IRLR 922:

'A geriatric nurse had made several complaints to the management about poor care standards and staff shortages. These were eventually backed by an independent inspection and in the light of this she brought criminal proceedings against the care company. When she was summarily dismissed for repeated illnesses (?) she complained that the real reason was the complaints. However, the German courts held, not that that was untrue, but that her complaints constituted a lawful reason to dismiss. Before the ECtHR it was accepted that art 10 (freedom of expression) was engaged and that the employer had

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