Obligation of companies with more than 50 workers to activate an Internal Whistleblower Channel

On February 21, 2023, Law 2/2023, of February 20, regulating the protection of people who report violations of regulations and the fight against corruption, was published in the Official State Gazette (BOE). The new text will enter into force on March 13, 2023.

The most relevant effect of this regulation is that within a maximum period of 3 months, all private individuals or legal entities that have more than 50 workers hired must establish an Internal Whistleblower Channel. That period may be extended until December 1, 2023 for those companies that have less than 250 workers.

Organizations that must have an Equality Plan will also be required to implement a Claims Channel; companies affected by the Money Laundering Law; companies dedicated to transport security; companies affected by environmental protection laws; organizations that require certification according to certain ISO standards; and organizations that participate in certain public tenders.

The objective of the Internal Whistleblower Channel is that the company can receive, manage and resolve complaints or communications made by members of its organization or by external persons linked to it (customers, suppliers, collaborators).

The legislator intends to go one step further within the framework of the Compliance system, transferring to companies a responsibility for the investigation process of commissions or infractions carried out by the personnel that are part of it, with the aim of avoiding and repairing as soon as possible any damage caused or that could be caused.

These communications may refer to known facts in the field of an employment or professional relationship, whether in force, ended or even not started (selection processes).

Those companies that are not obliged to implement this system may benefit from it by creating it voluntarily with the aim of reinforcing their procedures for transparency and good corporate governance.

Access to the internal communication system must be easily accessible, independent from other internal information systems and must guarantee confidentiality and anonymity.

Likewise, other obligations are established for companies, such as: establishing and publicizing a Regulatory Policy of the principles of the Chanel; keep a Record Book of communications and document all investigations carried out; implement a Whistleblower Channel Management Procedure; and establish protection guarantees for whistleblowers.

The company’s administrative body must designate a Whistleblower Channel Manager to ensure compliance with all regulatory procedures.

Failure to comply with the obligation to implement the Whistleblower Channel is considered a very serious offense and entails sanctions of up to 1,000,000 euros.

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