On 8 October, the European Court of Human Rights had the occasion to reaffirm its commitment to whistleblower protection, holding that the firing of a Ukrainian prosecutor was contrary to Article 10 of the European Convention on Human Rights.

The case, Goryaynova v. Ukraine, serves as a reminder that employers in the private and public sectors must not engage in retaliatory acts in response to employee allegations of wrongdoing.

In the Goryaynova case, for example, it was alleged that the employer:

  • transferred whistleblowers or forced them to retire;
  • engaged in retaliatory disciplinary investigations;
  • spread false rumors about employees who had complained of wrongdoing; and
  • sacked whistleblowers.

Of particular interest, the ECHR noted that the whistleblower’s dismissal from her job seemed pretextual because the employer had cited contradictory reasons for the dismissal. More specifically, the employer claimed that the employee had made both “unfounded, false and insulting statements” and had “disseminated confidential and official information”. The ECHR questioned how statements could be simultaneously “unfounded and false” and contain “confidential and official information”.

This is an important reminder to employers that in the event an employer seeks to discipline an employee who has disclosed information that is in part false and in part confidential, it is important to specify in official form exactly which aspects of the disclosure are false and which are confidential. Otherwise, a court risks finding that the disciplinary action was pretextual.

 

 

Johanna SCHWARTZ MIRALLES

Attorney (US)
Johanna is an American attorney and a graduate of Harvard Law School. Her legal practice spans a broad range of fields, including international commercial contracts, anti-corruption laws, compliance programs, whistleblower protections (Sapin II), business litigation and arbitration.

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Benoît LAFOURCADE

Co-Founder, Partner & Solicitor -
International Corporate Law & Litigation

Benoît, Delcade’s co-founder, is a Paris Bar lawyer and UK Solicitor (London).

Advisor for various embassies, working closely with the firm's team, Benoît offers his services to French and foreign companies requiring cross-cutting strategic and legal support in business law.

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