Recital 93
Directive on the protection of persons who report breaches of Union law · UE 2019/1937
| (93) | Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he or she reported breaches or made a public disclosure in accordance with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure. |
In Luxembourg, the law of 16 May 2023 on the protection of whistleblowers fully transposes the burden-of-proof reversal before labour courts and the ITM. An employer unable to demonstrate that the adverse measure was unrelated to the report faces a fine of EUR 1,250 to EUR 25,000 (doubled in case of recurrence) on top of full civil compensation for the whistleblower's damage.
Luxgap practice: build and seal the justifying HR file before any adverse measure targeting an employee who has reported in the past 24 months, and have the decision validated by the DPO or external counsel to neutralise OFRS and ITM exposure.
