1. Do any specific procedures need to be considered in case a whistleblower report sets off an internal investigation (e.g. for whistleblower protection)?
General employment law principles apply to whistleblowers who are employees. They cannot be dismissed or otherwise penalised for making a report where that report relates to actual or potential suspicions of illegal behaviour or behaviour that is contrary to the public interest.
If the whistleblower report is made to law enforcement authorities (e.g. the prosecutor's office, the Police, the National Anti-Corruption Bureau, the National Agency on Corruption Prevention), the whistleblower can request the authorities to protect them and their families where there is a threat to life.
In addition, Ukrainian law provides that an internal investigation must be conducted in certain circumstances. In particular, the Law on Preventing Corruption provides that certain types of entities, including certain public authorities and public entities (which include state-owned and municipality-owned entities) must have anticorruption programmes in place which should include the conduct of internal investigations.
Where a whistleblowing report is made to a law enforcement authority, the authority concerned is required to review anonymously filed whistleblower reports within 15 days (or maximum 30 days) and non-anonymously filed reports within one month (or maximum 45 days).
There is no specific procedure for reviewing whistleblower reports made to private companies. However, the Model Anti-Corruption Programme for legal entities, which applies to:
- Companies (including foreign-owned companies) which participate in the public procurement procedure for projects equal to or exceeding 20 million Hrywnja; and
- Public entities (as described above) and entities, where the state or municipality own 50 or more percent, and have 50 or more employees and an annual income exceeding 70 million Hrywnja provides that relevant companies must have an anti-corruption programme in place which includes a procedure for internal investigations.
Where the internal investigation relates to potentially criminal conduct, all entities are obliged to notify law enforcement authorities about "serious" and "particularly serious" crimes. Failure to notify is considered a crime.
2. Do the following persons/bodies have the right to be informed about an internal investigation before it is commenced and/or to participate in the investigation (e.g. the interviews)?
- Employee representative bodies, such as a works council
- Data protection officer or data privacy authority
- Other local authorities
What are the consequences in case of non‐compliance?
a) Trade unions established within individual companies (so-called "primary trade union organisations") will only have the right to be informed about and/or participate in an internal investigation when the investigation relates to accidents and/or occupational diseases of employees (i.e. a disease that occurs as a result of work or occupational activity). Violation of this right can result in a small fine.
b) Companies have the obligation to notify the data protection authority in Ukraine (the Ukrainian Parliament Commissioner for Human Rights) about the processing of sensitive personal data, not related to employment issues, within 30 days after the start of processing. This obligation also applies to internal investigations where such data is being processed.
Non-compliance with this obligation can lead to an administrative fine of up to 6,800 Hrywnja (approximately €200) for each violation and up to 34,000 Hrywnja (approximately €1,000) for repeated violations. There are no obligations to notify the data protection officer(s) of the investigated company.
c) Where the company is public (as described in question 1), upon becoming aware of any corruption incident or after receiving information about a possible corruption incident, the heads of public body and their departments must take measures to stop the violation and immediately inform the responsible anticorruption state authorities.
Financial institutions (e.g. banks and insurance companies), stock exchanges and other companies conducting financial monitoring have to notify the State Financial Monitoring Service of Ukraine and the respective law enforcement authorities within a day when a financial transaction conducted or monitored by them is, or may be, related to a crime.
Private companies are not obliged to notify law enforcement authorities or involve them in internal investigations.
However, the company must notify the law enforcement authorities about the results of the investigation if a corruption offence was determined. Besides, Ukrainian law foresees a notification obligation for individuals and potential criminal liability in cases where an individual becomes aware of conduct pertaining to certain serious and/or particularly serious crimes.
3. Do employees have a duty to support the investigation, e.g. by participating in interviews? If so, may the company impose disciplinary measures if the employee refuses to cooperate?
There is no explicit obligation under Ukrainian law for employees to support an internal investigation. However, the employee is obliged to fulfil any lawful order of the employer. This can also include an order to support an internal investigation. Not supporting the investigation can trigger disciplinary penalties, including dismissal.
4. May any labour law deadlines be triggered or any rights to sanction employees be waived by investigative actions? How can this be avoided?
There are no labour law deadlines triggered or any rights to sanction employees waived by investigative actions. However, disciplinary actions against an employee under labour law can only be conducted within a certain time limit of up to six months after the violation took place. This time limit only affects labour law actions against the employee.
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Previously published in European Investigations Guide 2018
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.