- Is there a law on whistleblowing in your country?
- Does local law require private entities to establish a whistleblowing system? (If so, which private entities?)
- What legal risks does an entity face for not establishing a reporting channel?
- Are there any mandatory requirements for establishing a reporting channel under local labour law?
- Does local law require employee involvement when establishing a whistleblowing system?
- Does local law prohibit employees from disclosing irregularities/misconduct externally, e.g. to the public?
- Is there legal whistleblower protection aimed at preventing discrimination against or dismissal of a whistleblower (as employee) under local labour law?
- Are there any mandatory requirements and/or accompanying measures under local data protection law?
- Does local law prohibit a group of entities from different jurisdictions from setting up a joint whistleblowing system?
jurisdiction
1. Is there a law on whistleblowing in your country?
No, there is currently no law for reporting irregularities, but bills are being passed that seek to regulate aspects of business risks, which will involve employees and their possible role as whistleblowers.
2. Does local law require private entities to establish a whistleblowing system? (If so, which private entities?)
No, there is no obligation for private companies to implement complaint mechanisms under a whistleblowing law. But we have regulations on labour matters that require having an Internal Coexistence Committee within companies to deal with complaints filed by employees as part of the workplace harassment law in force in Colombia.
Additionally, companies under the supervision of the Superintendence of Companies that are required to implement Compliance Systems 1 must ensure there are internal mechanisms in place where any person can confidentially and anonymously report to the compliance team any behaviour that constitutes a violation of the policies contained in these systems or represents a risk in terms of anti-money laundering/counter-terrorism financing and/or corruption/transnational bribery 2 .
Likewise, obligated companies must ensure that Whistleblowers do not suffer consequences or undergo retaliation for reporting such behaviour within the company.
3. What legal risks does an entity face for not establishing a reporting channel?
The most visible risks that companies may face due to not having an adequate whistleblowing mechanism can range from improper use of confidential information by workers, to corruption practices that may involve employees, contractors, and external actors.
In 2022, the Colombian Congress enacted Law 2195, also known as the "Transparency Law." This law modified various types of administrative sanctioning liability processes against national and international companies relating to corrupt practices. Among these modifications, it introduced mitigating and aggravating factors related to the cooperation or lack thereof of companies with sanctioning authorities. While the Transparency Law does not require the implementation of a whistleblowing system, having one could be crucial for obtaining information internally on acts of corruption in a timely manner and allowing companies to collaborate effectively with authorities, thereby avoiding aggravating factors and benefiting from the mitigating factors provided in this law.
4. Are there any mandatory requirements for establishing a reporting channel under local labour law?
Yes, there are requirements to have mandatory complaint mechanisms in the workplace, which must be contemplated in the internal work regulations (employee´s handbook) where the mechanisms for activating complaints are communicated through the Internal Coexistence Committee and any other vehicle that the company establishes for complaints that should always be reported by workers.
5. Does local law require employee involvement when establishing a whistleblowing system?
Yes, the local labour law and employment type whistleblowing system requires the participation of at least two workers who represent the employees in the Internal Coexistence Committee. The companies could have other internal private whistleblowing mechanisms more focused on reporting possible corruption behaviors, in which employees should also participate.
6. Does local law prohibit employees from disclosing irregularities/misconduct externally, e.g. to the public?
There is no express prohibition in Colombian law to prevent employees from reporting bad practices and irregular situations that may arise in the employer's environment. However, within the whistleblowing mechanisms, internal processes can be implemented that are mandatory for employees and must be verified within the companies. Nevertheless, employees may report irregularities that they consider to be of a public nature to the authorities.
7. Is there legal whistleblower protection aimed at preventing discrimination against or dismissal of a whistleblower (as employee) under local labour law?
There is legal protection for a complainant who demonstrates that their complaints are legitimate and do not go against the legal interests of the employer. Law 1010 of 2010 establishes protection mechanisms for workers who are harassed or affected because they make legitimate complaints to avoid possible retaliatory measures against those who report possible incidents of work harassment. There is no specific legislation regarding the report of incidents of alleged corruption, as mentioned before, however some companies have implemented internal whistleblowing policies that include protection measures to avoid retaliation against people who make reports through whistleblowing hotlines
8. Are there any mandatory requirements and/or accompanying measures under local data protection law?
According to Law 1581 of 2012 (the main regulation about data protection in Colombia) all the information that could be labelled as sensitive data (those that may affect the privacy of the data owner or could lead to discrimination against the owner in case of wrongful use), must be treated with the due confidentiality and only for the purposes authorized by the owner. This means that all the internal whistleblowing policies and the activities performed by the coexistence committee in the case of labour harassment complaints must take into account these dispositions, taking due care with regard to the usage of the information provided by whistleblowers or complainants.
9. Does local law prohibit a group of entities from different jurisdictions from setting up a joint whistleblowing system?
No, as mentioned before, the lack of internal regulation means that having a joint whistleblowing system that involves different jurisdictions is not expressly forbidden. On the contrary, in practice it is common for some multinational companies with a presence in Colombia to apply their global whistleblowing policies to their Colombian subsidiaries or branches.
