Whistleblowing heard at the Constitutional Court of the Czech Republic

07.04.2016

Whistleblowing is understood to mean a situation where an employee informs of the illegal, unethical, or dangerous practices or activities of the employer. The term can also be understood in the wider meaning of the word, where this activity is not carried out by the employer but, for example, by a subcontractor, etc.

Czech law does not offer legal regulations, let alone a definition of this term, although in recent years discussions on this topic have grown. Repeated suggestions were put forward for legislation, which unfortunately failed to convince the legislators. The lack of sophistication of the proposals was criticized, and doubts were raised about the need to regulate whistleblowing. Finally, a similar legal arrangement may, according to critics, clash with ethical limits. It could be seen as “snitching”, which is often financially motivated.

Despite the lack of legislation, even the Czech Republic is not lacking in some sources providing guidance on how to grasp this issue. Besides the practice of the European Court of Human Rights (e.g. the verdict in Heinisch vs. Germany), several viewpoints were recently offered by the Constitutional Court of the Czech Republic. It dealt with a case in which employees highlighted the conduct of their employer, which was a wastewater treatment plant. There were repeated violations of technological discipline, which resulted in environmental degradation. The employer then immediately terminated the employment relationship with those employees. The Constitutional Court therefore had to compare the public interest in protecting the environment, with the employer's interests involving the loyalty of its employees. The Court finally concluded that the conduct of the employees was in order to the extent in which they informed the state authorities of the environmental damage. The employees, however, also provided this information to purely private entities, to whom they also disclosed other, unrelated data. The Constitutional Court concluded that this acting was aimed at damaging the employer, and therefore denied to provide protection to the employees, and rejected their complaint.

A similar case came before the Constitutional Court just a few weeks later. The employee in this case, in a not quite appropriately worded text, informed a potential business partner of his employer’s discriminatory conditions and other defects in the tender which the employer wished to attend. Again, this concerned providing sensitive information to a private party. The Constitutional Court in this case found that there was not a substantial enough threat to public funds to be able to justify a lack of loyalty, and the complaint was also brushed aside.

Both of these verdicts compare public interest in employee loyalty. Together, they can give the impression that the Constitutional Court is not a fan of whistleblowers either. Such an unambiguous conclusion would, however, be misleading, since in the first case, the court clearly said that if the employees had provided information about environmental damage only to public authorities, e.g. the Czech Environmental Inspectorate, and had not spread other unflattering information about their employer, the court would have probably upheld the complaint and provided protection. Therefore, it is clear that cases of whistleblowing cannot be judged by a definite set pattern, since it is usually necessary to apply the principle of proportionality.