02 Feb Whistleblowers Protection Act
Background
The Whistleblowers Authority Act entered into force in 2016. It obligates employers with at least 50 employees to have an internal reporting system in place for filing reports of suspected wrongdoing within the organisation. If an employee files such a report, he or she, as a whistleblower, currently enjoys protection against any disadvantageous impact on his or her legal position (known as the ‘prohibition of disadvantaging’). In late 2019, however, a European directive was adopted that aims to further strengthen the legal position of whistleblowers. In the Netherlands, that directive has been implemented in the form of the Wet bescherming klokkenluiders (Whistleblowers Protection Act). After a lengthy legislative process, the bill was adopted by the Upper Houser at the end of January 2023 and will soon be enacted.
Main changes
The Whistleblowers Protection Act gives rise to many changes. The main changes are briefly addressed in outline below.
• Definition of wrongdoing
Whereas wrongdoing currently refers, briefly stated, to a situation in which an employee has reason to suspect that the public interest is at stake, the Whistleblowers Protection Act will also classify a violation or threat of violation of Union law as wrongdoing. This will broaden the definition of wrongdoing under the Whistleblowers Protection Act.
• Internal reporting procedure
The obligation to have an internal reporting procedure remains for employers with at least 50 employees, albeit subject to stricter requirements. From now on, the internal reporting procedure must show, among other things, that reports may be filed in three ways (in writing, orally and in the form of an on site conversation), how reports can be filed anonymously, that a reporting party receives acknowledgement of receipt within seven days after filing a report, and that the reporting party receives information on the assessment of and follow-up to the report within a reasonable period (no more than three months) after the acknowledgement of receipt was sent. An employer must furthermore enter a report under the Whistleblowers Protection Act in a register set up for that purpose.
Please note that the employer requires the consent of either the works council or the employee representative body in order to set up or change this internal reporting procedure. If the employer has not set up a works council or employee representative body and is not required to do so, the Whistleblowers Protection Act prescribes that the employer needs the consent of more than half of the employees when setting up the internal reporting procedure.
• External reporting procedure
When the Whistleblowers Protection Act has been enacted, it will no longer be the rule that an internal report must first be filed before an external report is possible. This means that the Whistleblowers Protection Act also allows the filing of a report directly with an external reporting channel, a list of which is set out in the Whistleblowers Protection Act.
• Broadening of the term ‘reporting party’
Under current law, only an employee may file a report. The Whistleblowers Protection Act extends this to a ‘reporting party’, being ‘a natural person who, in the context of his or her work-related activities, reports or discloses a suspicion of wrongdoing’. In addition to an employee, the term may also include, for instance, self-employed persons, trainees, shareholders and volunteers.
• Broadening of the prohibition of disadvantaging
The Whistleblowers Protection Act expands the prohibition of disadvantaging, which currently relates only to a prohibition of disadvantaging of the employee’s legal position. If a reporting party has filed a report in accordance with the requirements set out in the Whistleblowers Protection Act, that Act protects the reporting party against any form of disadvantaging during and after the handling of a report.
• Reversal of the burden of proof
If the person reporting is nevertheless disadvantaged during or after the handling of a report, the Whistleblowers Protection Act assumes that that disadvantaging is the result of the report or disclosure. This means that the burden of proof is reversed under the Whistleblowers Protection Act: it is up to the employer to prove that the disadvantaging is unrelated to the report or disclosure.
• Enforcement and sanctions
If the employer fails to set up an internal reporting procedure despite being obligated to do so, the Whistleblowers Protection Act allows any interested employee to request the subdistrict court to rule that the employer must set up an internal reporting procedure within a period determined by the subdistrict court. The Whistleblowers Authority is furthermore charged with monitoring compliance with the Whistleblowers Protection Act and may impose an order subject to a penalty as well as an administrative fine.
Entering into force
The Whistleblowers Protection Act will enter into force at a time yet to be determined by royal decree. From that moment on, employers in the public sector and employers in the private sector with 250 or more employees must comply with the Whistleblowers Protection Act. Employers in the private sector with 50 to 249 employees will not be required to comply with the Whistleblowers Protection Act until 17 December 2023.
Conclusion
The Whistleblowers Protection Act brings about the necessary changes to strengthen the legal position of whistleblowers. For employers this means, among other things, that they will have to adjust their internal reporting procedure and – because the establishment, amendment or withdrawal of a reporting procedure requires consent under the Works Councils Act – involve the works council or employee representative body in a timely manner.
Please contact our employment law specialists if you require advice on this change in the law or need help updating your internal reporting procedure.