Retaliation under EU Directive 2019/1937: the 27 prohibited acts and how courts interpret them

Retaliation is the central wrong the EU Whistleblower Directive exists to prevent. Article 19 lists 14 explicit examples. National implementations and the case law of the past three years have extended the list to at least 27 distinguishable acts. For compliance officers and labour lawyers, knowing the catalogue matters because the reverse burden of proof under Article 21(5) means the employer must justify the act, not the reporter who must prove it.

Direct answer

Article 19 of Directive (EU) 2019/1937 prohibits 14 explicit retaliatory acts: suspension, dismissal, demotion, withholding of promotion, transfer, change of duties, change of location, reduction in wages, change in working hours, withholding of training, negative performance assessment, imposition of disciplinary measures, harassment, and discrimination. National courts have added at least 13 more interpretations through 2023-2026: defamation, blacklisting in the industry, premature termination of fixed-term contracts, non-renewal of contracts, refusal of conversion to permanent, denial of reference letters, withdrawal of equipment or office, exclusion from meetings, social isolation, mental-health pressure, suspicious “performance improvement plans” timed to the report, denial of holiday requests, and the threat of any of the above.

Article 19’s explicit list

Article 19 of Directive (EU) 2019/1937 sets out the catalogue. The list is non-exhaustive: the article says “including, but not limited to”. The reverse burden of proof under Article 21(5) attaches to any of these acts and to “any direct or indirect adverse measure” outside the list where it would otherwise meet the definition.

Employment-relationship acts

Suspension, lay-off, dismissal. The most visible category. Dismissal includes constructive dismissal, where the employer makes conditions intolerable enough that the reporter resigns. The German Bundesarbeitsgericht confirmed in BAG 2 AZR 78/24 (2025) that a constructive dismissal following a HinSchG-protected report falls within §36 HinSchG protections; the employer must justify the change in conditions, not the reporter.

Demotion or withholding of promotion. Demotion is straightforward. Withholding of promotion is harder to evidence but easier under the reverse burden: the reporter shows they were objectively qualified and that the report preceded the promotion decision, and the employer must justify the choice on grounds unrelated to the disclosure. A 2024 French Cour de Cassation ruling (Cass. soc., 12 juin 2024, n° 22-19.853) confirmed this analysis.

Transfer of duties, change of location, change of working hours, change of duties. Disguised demotions. The Italian Tribunale di Milano in a 2024 D.Lgs. 24/2023 case held that a transfer from a strategic role to a back-office function on the same day a report was filed met the prima facie evidence threshold.

Reduction in wages. Including the targeted withdrawal of variable compensation, bonuses, and commissions.

Withholding of training, negative performance assessment, imposition of disciplinary measures. Sudden poor reviews after years of strong ones are classical evidence of retaliation. Performance Improvement Plans (PIPs) initiated within weeks of a disclosure are red flags even when the underlying performance criticism is documented; the timing is the point.

Coercion, intimidation, harassment, ostracism. The catch-all for psychological pressure short of formal employment action. Covers exclusion from meetings, denial of information needed to do the job, cold-shouldering by managers, and assignment to demeaning tasks.

Discrimination, disadvantageous or unfair treatment. Includes treating the reporter less favourably than peers in similar circumstances.

Failure to convert a temporary contract to a permanent contract; early termination of a temporary contract; non-renewal. These three matter because they target the most vulnerable workers (those without indefinite contracts) and were a known gap in pre-Directive national regimes.

Harm, including to the person’s reputation, in particular on social media; financial loss, including loss of business and loss of income. Reputational harm covers leaks to industry contacts and disparagement in references.

Blacklisting on the basis of a sector- or industry-wide informal or formal agreement. Particularly relevant in concentrated sectors like aviation, defence, and parts of pharma.

Early termination or cancellation of contract for goods or services; cancellation of a licence or permit. Self-employed contractors and the licensed professions.

Psychiatric or medical referrals. A formal referral to occupational health following a disclosure is itself a retaliatory measure where it is targeted or unjustified. This survives from the older UK Public Interest Disclosure Act case law and has been imported into the Directive era.

The 13 extensions added by national case law

National courts have read Article 19 broadly. The following acts have been treated as retaliation in published decisions:

1. Defamation through internal channels. Statements about the reporter circulated within the company that hold them out as untrustworthy or unstable.
2. Industry blacklisting through informal channels. WhatsApp groups, sector associations, recruiter networks. Hard to evidence but recognised in principle.
3. Premature termination of fixed-term contracts. Cited explicitly in Article 19 but worth restating: the conversion-to-permanent and termination categories overlap.
4. Denial of a positive reference. The employer is not obliged to provide a positive reference but the systematic denial of one to a reporter while peers receive them is treated as adverse treatment.
5. Withdrawal of equipment, office, parking, or other working tools.
6. Exclusion from meetings, project teams, or distribution lists.
7. Social isolation by managers (cold-shouldering).
8. Mental-health pressure: “you seem stressed, take some time off”.
9. Performance Improvement Plans timed to the report. PIPs are not retaliation per se, but their initiation immediately after a disclosure, particularly where they cite metrics that would not previously have warranted one, is.
10. Denial of holiday or training requests that would have been routinely granted.
11. Adverse changes to discretionary benefits: car park assignment, hot-desking instead of a fixed desk, removal of remote-work privileges.
12. The threat of any of the above, communicated to the reporter or to third parties. Article 21(7) treats threats as retaliation in their own right.
13. Adverse measures against family members, partners, or colleagues who supported the reporter. Article 4(4)(b) extends protection to facilitators and to the reporter’s family or colleagues at the same workplace.

Why the burden of proof matters

Article 21(5) shifts the burden once the reporter shows two things: that they made a protected report, and that an adverse measure followed. The employer must then prove the measure was based on duly justified grounds unrelated to the disclosure. In practice this means the employer needs a documented record of the disciplinary or business reason for the act that pre-dates the report. After the report, the bar for action against the reporter is high: the employer must show contemporaneous documentation that the act was being prepared independently.

Confidly’s case timeline records every report timestamp and every status change. When a retaliation claim arises later, the timeline anchors the reverse-burden analysis: what was on file before the disclosure, what was on file after. The discipline of running the channel well is, in this sense, also the discipline of defending against retaliation claims well.

What compliance officers should do this quarter

The practical playbook for closing the retaliation exposure is short:

• Issue or refresh the anti-retaliation policy with all 27 acts catalogued; reference the relevant article of the national transposition.
• Train line managers on the reverse burden: a manager taking any of these 27 actions against a reporter, even routine ones, will be asked to justify them.
• Configure the case-management system to flag any HR action against a known reporter for a senior-compliance second look for 24 months after the report.
• Track retaliation indicators in the post-mortem review: how many reports led to subsequent HR actions against the reporter, and what was the documented justification.

Reporters who feel safe report more, and report earlier, which is when the organisation can still fix the underlying problem cheaply. The cost of retaliation is paid twice: once in fines, once in the cases that no one filed because the previous reporter was punished.