EU frameworkGDPRNIS 2DORAAI ActWhistleblowing
Article 19

Prohibition of retaliation

Directive on the protection of persons who report breaches of Union law · UE 2019/1937

Prohibition of retaliation

Member States shall take the necessary measures to prohibit any form of retaliation against persons referred to in Article 4, including threats of retaliation and attempts of retaliation including in particular in the form of:

(a)

suspension, lay-off, dismissal or equivalent measures;

(b)

demotion or withholding of promotion;

(c)

transfer of duties, change of location of place of work, reduction in wages, change in working hours;

(d)

withholding of training;

(e)

a negative performance assessment or employment reference;

(f)

imposition or administering of any disciplinary measure, reprimand or other penalty, including a financial penalty;

(g)

coercion, intimidation, harassment or ostracism;

(h)

discrimination, disadvantageous or unfair treatment;

(i)

failure to convert a temporary employment contract into a permanent one, where the worker had legitimate expectations that he or she would be offered permanent employment;

(j)

failure to renew, or early termination of, a temporary employment contract;

(k)

harm, including to the person's reputation, particularly in social media, or financial loss, including loss of business and loss of income;

(l)

blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry;

(m)

early termination or cancellation of a contract for goods or services;

(n)

cancellation of a licence or permit;

(o)

psychiatric or medical referrals.

Luxembourg specificity
loi luxembourgeoise du 16 mai 2023 relative a la protection des personnes qui signalent des violations du droit

In Luxembourg, the law of 16 May 2023 on whistleblower protection prohibits the retaliation listed in Article 19 and adds robust protection: the Office des rapports de signalement (OFRS) is the cross-sector external authority, and reporting remains possible to the ITM for labour matters, the CSSF (finance), the CNPD (data), the CAA (insurance) or the ILR (telecom) depending on the field. The threshold for a mandatory internal channel is 50 employees for both private and public sectors, with no threshold for public bodies. Retaliation exposes the employer to criminal fines of 1,250 to 25,000 EUR (doubled in case of repeat offence), on top of civil compensation for the whistleblower.

Luxgap practice: systematically document the objective reason for every HR measure targeting a protected person and keep proof that the decision-maker was unaware of the report, this is your only defence against the reversal of the burden of proof before the ITM.