Denial of whistleblower protection on the grounds of the reporting channel chosen to file the complaint.
Case Note on Judgment No. 5487/2026 of the High Court of Justice of Madrid (Labour Chamber), 16th April 2026
Abstract
The judgment rules on the appeal filed by an employee, who contends that his dismissal should not have been classified as unfair, as held by the court of first instance, but rather declared null and void, on the grounds that it constituted retaliation in response for the reports he had submitted concerning alleged unlawful practices, carried out by one of his employer’s commercial partners. The judgment also examines whether the employee falls within the scope of protection afforded by Spanish Law 2/2023 on the protection of whistleblowers, and individuals who report infringements.
Facts
The appellant, M., an employee of Company I., was dismissed on 27th of June 2023 on disciplinary grounds, for failing to meet the performance targets set by the company, and for creating a negative work atmosphere. It was established that, since February 2023, the company had already raised concerns regarding his performance and was considering terminating his employment.
In May 2023, M. filed a complaint with ING Bank’s Spanish branch, an entity that maintained a commercial partnership with his employer. In his complaint, he alleged unlawful practices carried out by insurance agents of Company N., in connection with the distribution of ING Bank mortgage products. He also submitted a complaint to the Bank of Spain, reporting the alleged practices involving ING and Company N.
The appellant challenged the dismissal filing and appeal, arguing that it should be declared null and void, on the grounds that it constituted retaliation for the complaints he had lodged, concerning the allegedly unlawful practices carried out by one of Company I.’s commercial clients.
Ruling
The ruling concludes that the dismissal should not be declared null and void, as it has not been proven that the employer’s decision was taken in retaliation for the complaints filed by the appellant.
The Court further found that M. did not fall within either the material or personal scope of application of Spanish Act 2/2023, as he was not an employee of any of the entities against which he had filed the complaints. In this regard, the Court noted that the complaints concerned allegedly unlawful practices carried out by third-party entities which were not addressed through his company’s internal reporting channels, but rather through the channels of the companies against which the complaints were filed or through third party entities.
Discussion on the Scope of Application of Spanish Act 2/2023 and Legal Assessment
The Court first concluded that the facts of the case did not fall within the scope of application of Law 2/2023, as they do not constitute actions or omissions that could amount to a serious or very serious criminal or administrative offense. This conclusion was based on the evidence produced during the proceedings, from which the Court found that the conduct reported in relation to ING Bank and Company N. could not be classified as a serious or very serious infringement. In reaching this conclusion, the Court relied on the investigations carried out by both ING Bank and the CNMC, in which both concluded that there was no evidence of criminal conduct or any infringement arising from the practices that had been reported.
The issue concerning the personal scope of Article 4.1 of Directive (EU) 2019/1937 is, however, more open to debate. That provision extends that the protection afforded by the Directive shall extend to whistleblowers who report violations discovered in a work related context. Although the appellant did not have an employment relationship with any of the entities against which he filed his complaints, the information was clearly obtained in a work related context, as a result of the commercial relationship between his employer and ING Bank. A broad interpretation of the concept of a work-related context, appears difficult to reconcile with the exclusion of the appellant from the personal scope of the Directive.
In fact, the appellant requested that the matter be referred to the Court of Justice of the European Union for a preliminary ruling in order to clarify the scope of the protection provided under the Directive. The High Court of Justice of Madrid, declined to make such a reference, holding that the apellant was not seeking clarification of the interpretation of EU law, but rather a reassessment of the factual circumstances of the case and the evidence presented. Consequently, the ruling does not definitively resolve the question raised by the appellant as to whether, considering the concept of a work-related context, he should have been entitled to the protective measures established in the Directive.