- According to the whistleblower protection law, public and private companies with more than 50 employees must implement a system that allows anyone to safely report a complaint.
- Companies with fewer than 249 workers have until December 1, 2023 to implement an effective and guaranteed complaints channel
Know the law
The Law 2/2023, of February 20, regulating the protection of people who report regulatory infractions and the fight against corruption, regulator of the protection of people who report regulatory infractions and the fight against corruption, transposes into the Spanish legal system what is known as Whistlelowing Directive.
This European directive aims to reinforce the culture of compliance of public and private entities and citizen collaboration, which are essential for the effectiveness of the law, protecting people who report regulatory violations and fighting corruption, in matters such as corruption, fraud, abuse of power, violation of data protection, damage to the environment, etc.
This, added to the fact that the Criminal Procedure Law considers it a duty for every citizen to report the commission of a crime, makes vitally important protect the informants.
As a consequence, it is mandatory that public and private entities and, therefore, small and medium-sized companies, must have a internal information system that allows whistleblowers to report violations securely and confidentially.
This measure affects more than 21,000 SMEs, which have up to December 1st to put these trustworthy channels into operation.
How is this implementation going to be carried out?
SMEs in Spain are taking as a reference the Portuguese model that was launched a year ago and, to this end, the law creates an independent whistleblower protection authority that guarantees the implementation and supervision of the law, under the name of Independent Whistleblower Protection Authority (AIPE). At the same time, there will also be autonomous bodies with the same purpose.
The information can be sent through all enabled communication channels:
- Written: postal mail or any electronic means made available to the informant.
- Verbally: via telephone or voice messaging. Only in this case will the informant be warned that he or she will be recorded.
In both cases, the request is made confidentially and you can decide whether or not you wish to receive communications about the process. This information will be recorded and within a period of 5 business days from receipt and receipt will be acknowledged. After this procedure, it will be in the hands of the relevant authority to carry out the investigations it deems necessary.
Who is responsible for its compliance?
It is common that, in small and medium-sized companies, the new role of compliance officer falls to the HR department. These teams must assign a person in charge and communicate this to the Independent Whistleblower Protection Authority.
It is advisable, as it is not a usual role within the department, that this assigned person be trained on the subject. Thus, you will not only be able to be the reference, but you will also be able to manage infractions, warn of sanctions, explain the reporting channels and create a compliance culture. Of course, it will be essential that the reporting channels that are established guarantee the confidentiality of the informants.
The person designated to carry out this new position must have full knowledge of Law 2/2023. Through official channels, such as the BOE, you can acquire all the necessary knowledge about the law to include official complaint management procedures, as well as receive legal or legal advice from external professionals.
Ignorance of the law does not exempt from its implementation. Therefore, once the period to comply with the requirements established in this law has expired, SMEs are obliged to comply with it and thus avoid economic sanctions for very serious infringements, which can involve fines ranging from 600,001 to 1,000,000 euros, depending. of gravity.
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