Dutch whistleblower protection act into effect on february 18th, 2023: What will change for employers?

The Dutch Whistleblower Protection Act is the implementation of the European Whistleblower Directive (Directive EU 2019/1937). This directive aims to better protect the whistleblowers against adverse consequences when reporting within the organization or company they work for. The Dutch government should have transposed the directive into law by December 17th of 2021 at the latest. That happened through the Dutch Whistleblower Protection Act albeit far too late. This apparently has urged the Dutch government to determine that the law must have immediate effect.   

Most important changes of the Dutch Whistleblower Protection Act

Below are the main changes of the Dutch Whistleblower Protection Act. For information about this act (in Dutch), please visit:  wetbeschermingklokkenluiders.nl.

Broader scope of a wrongdoing
Under the Dutch Whistleblower Protection Act, a wrongdoing is defined as an (imminent) violation of Union law (EU law) or an act or omission in which the public interest is at stake. This also includes the (imminent) violation of internal rules of an employer that contain a concrete obligation and are based on a statutory regulation, for example, the non-compliance with safety instructions based on the Dutch Working Condition Act. According to the Dutch Whistleblower Protection Act, the public interest is at stake if the act or omission does not exclusively affect personal interests (no individual labor conflict) and there is either a pattern or structural character or the act or omission is serious or extensive in its nature.  

Obligation of internal reporting procedure
Employers with at least 50 employees are obliged to have an internal reporting procedure. This also includes subordinates who perform paid work other than on the basis of an employment contract. This means that, for example, volunteers and interns who receive compensation must be included in determining whether an internal reporting procedure is mandatory. Please note that for some employers, the internal reporting procedure is mandatory regardless of the number of employees, even those with fewer than 50. These are employers active in areas such as financial services, products and markets, and the prevention of money laundering and terrorist financing.

Stricter requirements internal reporting procedure
The internal reporting procedure must meet a number of (minimum) requirements and lay down, among other things:

- how verbal and written reports can be made and to which independent officer(s); 
- how to report anonymously;
- that a confirmation of receipt of the report is sent within seven days and that information is provided within three months on the follow-up to the report.

Duty to register
Employers must register reports of a wrongdoing in a register set up for this purpose. The data on a report must be destroyed when there is no longer a need to keep the data.

Direct external reporting
It is not obligatory to report internally first. A suspected wrongdoing can be reported directly to the House for Whistleblowers or a specifically authorized external reporting entity, such as the Dutch Data Protection Authority. However, it is preferable to report internally first in order to prevent escalation and to be able to remedy possible wrongdoing directly at the source.

Extended employee participation
In addition to the works council, staff representation also has the right to consent when it comes to the adoption, modification or withdrawal of the internal reporting procedure. If an employer does not have a works council or staff representation and is not obliged to do so, the consent of more than half of the number of employees is required to establish the internal reporting procedure, unless the internal reporting procedure is regulated by collective bargaining agreement. 

Broader scope whisteblower protection

A reporter, who has made a report in accordance with the law, may not be disadvantaged as a result. The Dutch Whistleblower Protection Act broadens the protection against adverse consequences. Actions that do not directly affect the legal position of the reporter, but which have (indirect) adverse consequences, are regarded as disadvantage in the Dutch Whistleblower Protection Act. Examples are intimidation, harassment and exclusion. Furthermore, involved third parties of the reporter, such as colleagues and family members, are also protected. The burden of proof that there is no detriment as a result of the report lies with the employer.

Prohibition on non-disclosure agreements

An employer may not prohibit a reporter from making a report or disclosing information. A clause requiring a protected reporter to remain silent is null and void.

Change in tasks and competences House for Whistleblowers

The investigation department of the House for Whistleblowers is the competent authority to impose sanctions on employers in the form of a fine or order under penalty, as to situations wherein an internal reporting procedure does not comply with the Dutch Whistleblower Protection Act. However, the introduction of the sanctions regime has been postponed and is yet to be worked out in further statutory regulations. In addition to the knowledge and prevention task as now provided by law, it is possible to request an anonymous investigation into suspected wrongdoing from the House of Whistleblowers.   

Transitional law

The Dutch Whistleblower Protection Act has immediate effect for employers with 249 employees or more, except for the procedure on anonymous reporting to the employer and the sanctioning powers of the House for Whistleblowers for which further statutory regulations are needed. Employers with 50 to 249 employees have time until December 17, 2023 at the latest. Public sector employers were already required to comply with the requirements of the Whistleblower Directive as of December 17, 2021. 

Time for action!

Employers who have not changed their internal reporting procedure yet, will have to take immediate action in due cooperation with their works council or staff representation in order to have an internal reporting procedure that is compliant with the Dutch Whistleblower Protection Act. If you have any questions about the Dutch Whistleblower Protection Act or need advice on drafting your internal reporting procedure, please contact us: info@vanbladeladvocaten.nl