Danske whistleblower lawyer invited to testify before European Parliament

Source: Jacob Gronholt-Pedersen/Reuters/Scanpix

Stephen Kohn, the attorney of Danske Bank whistleblower Howard Wilkinson, who unveiled alleged money laundering at the bank's Estonian branch, was invited to testify and offer recommendations before the European Parliament.

Wilkinson, a British trader at Danske Bank's Estonian branch until 2014, helped uncover an alleged money laundering scheme at the branch reaching billions of euros in size. Having sought protection from the Estonian and Danish authorities, Wilkinson testified at public hearings before the Folketing in Copenhagen on Monday, 19 November and at the European Parliament in Brussels on 21 November, Reuters reports.

The European Parliament also invited Wilkinson's attorney Stephen Kohn to testify before the European Parliament's Special Committee on Financial Crimes, Tax Evasion and Tax Avoidance as an expert witness on whistleblower rights.

Whistleblowers lack rights in Europe

As whistleblowers lack any effective rights under valid Danish and European law, Wilkinson could face criminal or civil prosecution for speaking out. It is for this reason that Kohn will provide suggestions regarding how to improve whistleblowers' protection from retaliation in Europe, the US' National Whistleblower Center said.

Prior to testifying, Kohn provided a detailed statement to the European Parliament answering questions posed by the committee and explaining precisely what steps need to be taken in order to ensure that employees are encouraged to report financial fraud and are fully protected from retaliation as well.

Kohn proposed that EU whistleblower protection legislation be harmonised with that of the US. He also provided six suggestions.

Suggestions for improving whistleblower rights, protections

First, a Whistleblower Office as a government agency needs to be established with a professional and well-trained staff, capable of accepting confidential or anonymous complaints and providing detailed information to prospective whistleblowers. The office needs to cooperate with other legal authorities in its investigations.

Second, confidentiality must be involved in all phases of the investigation into the whistleblower's claims. 

In other words, investigators must be required to conduct their investigation, and handle the evidence provided by the whistleblower, in a manner that will not reveal the identity of the whistleblower, or if possible, not reveal the fact that there is a whistleblower. 

Third, compensation must be predicated on the quality of information provided by the whistleblower, not the amount of harm they suffer as an employee. 

Thus, the whistleblower would be compensated only if their original information resulted in a successful enforcement action. Compensation is based on a percentage of the recovery obtained by the government. Thus, the whistleblower would only obtain compensation under this framework if their information was the triggering factor in a successful enforcement action. Furthermore, there is no direct cost to the taxpayers or citizenry. 

Fourth, the whistleblower's protection from the employer's retaliation must be guaranteed.

If a whistleblower is not confidential, and suffers an adverse action, they must be able to pursue an employment case. 

Fifth, the remedies available to a whistleblower in a retaliation case must be designed to make the employee "whole" and realistically compensate an employee for damages typically incurred in a whistleblower case.

That includes loss of reputation, emotional distress, wage loss and anticipated future losses to theeir career. An employee should have the option of obtaining reinstatement to their prior position or "front pay," to compensate the employee for losses in future income if they are not reinstated. Attorney fees must be available to whistleblowers who prevail in their cases.

Finally, prohibition against the abusive use of nondisclosure agreements (NDAs) needs to be established.

NDAs, which are commonly used in employment agreements or severance agreements, must be restricted in scope to avoid any prohibition against an employee's right to lawfully disclose misconduct.

"Whistleblower laws must be designed to undercut a fear to report wrongdoing, and a culture of silence that permits crimes, such as money laundering, to go undetected by law enforcement for years," Kohn said in his written reply. 


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Editor: Aili Vahtla

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