Dutch Supreme Court: whistleblower protection do not always prevent dismissal
According to the annual report of the House for Whistleblowers, last year, a quarter more people sought advice from the House for Whistleblowers than in 2023, reports NOS on March 14. At the House for Whistleblowers, people can report misconduct at their workplace that has societal consequences.
On February 7, 2025, the Supreme Court made its first ruling on the Whistleblower Protection Act (“Wbk”). In this ruling, the regulation of the prohibition of discrimination is central.
This regulation contains a presumption of proof in favor of the employee (reporter). This means that in the case of discrimination against a whistleblower (employee), it is presumed that the discrimination is related to a whistleblower report made by the employee. If necessary, the employer must refute this presumption.
What happened in this case?
In this case, it concerned an employee who had made a whistleblower report and was then confronted by the employer with a request to dissolve the employment contract due to a disturbed working relationship. The employee believed that this request for dissolution was a form of discrimination because of their report, which is prohibited under the Wbk.
The subdistrict court dissolved the employment contract between the employer and the whistleblower due to a disturbed working relationship. The employee appealed to the Court of Appeal. The Court of Appeal rejected the employee's claim. Subsequently, the employee filed an appeal in cassation.
The core question in cassation was whether the Court of Appeal had rightly ruled that the employer had sufficiently refuted the presumption of proof (that the employee was discriminated against because of the report).
The Supreme Court's judgment
The Supreme Court ruled that the employer had indeed made it sufficiently plausible that the request for dissolution was not related to the whistleblower report. Therefore, the appeal in cassation was rejected, and the Court of Appeal's ruling remained in force.
Important for employers
It is important for employers to know that a whistleblower report should not lead to discrimination against the employee who made the report. Employees are protected by the Wbk. If a conflict arises between the employer and the whistleblower or if the termination of the employment contract is sought for another reason, the employer must, if necessary, be able to prove that the intended termination is not related to the whistleblower report.
If you have any questions about this, please feel free to contact one of the specialists at Van Bladel Advocaten.
