Violations of the law and ethical misbehaviour damage companies, the economy and society. Employees as well as third parties should have the opportunity to report misconduct to suitable bodies within a company or to authorities without having to fear disadvantages or sanctions.
Clear procedures and rules for reporting violations and irregularities
The Federal Council therefore wants to create legal rules that clarify when such incident reporting, i.e. whistleblowing, is legal and when it is not. A notification would generally only be permissible if it is first submitted to the employer. Under certain circumstances, however, the employee can also forward the notification to the authority or make it public without violating his duty of loyalty. It may also be possible to involve the authorities without notifying the employer beforehand. This is the case if the notification to the employer would have no effect. The drafted bill is based on the assumption that a notification is effective if the employer has set up a whistleblowing channel and has determined how to proceed. Direct information to the authorities is also permitted if employees would otherwise be hindered in their activities or in order to avert harm or immediate danger to life and limb.
With the implementation of an incident reporting system, you as a company set a clear signal for well-functioning corporate governance and the establishment of an ethics culture that promotes trust in the communicated corporate values.
A long journey
On 20 November 2013, the Federal Council adopted a dispatch on the final implementation of the mandate of Motion 03.3212 Gysin “Legal protection for whistleblowers on corruption”. The Councils rejected this bill on 10 September 2015. Parliament demanded that the draft be formulated in a more “comprehensible and simpler” way. The Federal Council is responding to this request with a supplementary message on the partial revision of the Code of Obligations. It removes uncertainties with regard to the notification procedure and regulates when an anonymous notification is permissible.
The Federal Council wants clear procedures and rules as to when the reporting of violations and irregularities is lawful and when it is not. Today, the courts make this assessment in specific individual cases. The legal regulation is intended to bring more clarity and legal certainty, for both companies and employees. The bill submitted to parliament by the Federal Council regulates in detail when a notification to the employer, the authorities or the public is permissible and when it is not.
In a nutshell
- You should implement an incident reporting system that is tailored to your needs in your organisation and is consistent with your corporate values, ethics, policies and procedures.
- The incident reporting system should include anonymous and reliable reporting at the same time.
- You should review your whistleblowing policies and procedures to ensure that they are in line with legal requirements and best practice. If such policies/procedures do not exist, you should develop and implement such policies, guidelines, procedures, training and controls.
We are happy to support you in analysing whistleblowing cases and in implementing an appropriate incident reporting system (whistleblowing), incl. policies, guidelines, procedures, training and controls, which gives your employees the opportunity to report violations and irregularities.