Whistleblower update: new regulations for anonymous reporting on the way
Following the announcement of new regulations, anonymous reporting of suspected wrongdoing will soon be possible. Employers will be required to adjust their internal reporting procedures, also known as the "whistleblower policy."
The Whistleblower Protection Act (Dutch: Wet bescherming klokkenluiders), introduced at the outset of 2023, already provided for anonymous reporting. However, detailed regulations regarding this provision had yet to be elaborated. This task has now been completed with the submission of the “Besluit anoniem melden vermoedens van misstanden, which is currently under public internet consultation. The handling of an anonymous report differs from the ‘regular’ internal reporting procedure in several respects.
Anonymous reporting procedure
Under the forthcoming regulations, employers must establish procedures for anonymous reporting. The independent officer tasked with receiving anonymous reports will, to the extent feasible, arrange with the reporter on how they wish to proceed with the reporting process. Unlike a standard report, anonymous reporting does not necessarily require written submissions; it can be done verbally, over the phone or in person. Employers have discretion in choosing the means of communication, provided the anonymity of the reporter is ensured.
Qualifications of the independent officer
The proposed regulation imposes stringent requirements on the independent officer responsible for handling anonymous reports. This individual must not hold a managerial or HR-related position. In cases where multiple officers are designated to receive anonymous reports, it is permissible for some to hold managerial or HR-related roles, provided at least one officer does not. The initial assessment of anonymous reports must be conducted by the officer without managerial or HR background. Additionally, the independent officer must possess adequate knowledge and experience to assess the information provided by the reporter and handle the internal follow-up of anonymous reports adequately.
Annual reporting of anonymous Reports
The independent officer must submit an annual report on the anonymous reports received to the highest authority within the organization, as well as to the works council, employee representative body, or all employees if no formal representative body exists. The report must detail the number and nature of anonymous reports received and may not contain any personal data.
Ensuring true anonymity can conflict with a proper investigation
Anonymous reporting guarantees complete anonymity, even to the independent officer. However, it is advisable to include in the reporting procedure the acknowledgment that thorough investigation may be hindered by anonymity. If a situation arises where a report cannot be fully investigated due to anonymity, the reporter must decide whether to reveal their identity or accept the limitations of the investigation.
Implementation and consultation
If the “Besluit anoniem melden vermoeden van misstanden” is enacted, employers will be given a reasonable implementation period. Stakeholders can participate in the internet consultation process until May 14, 2024, by following this link.
For advice on ensuring compliance of your internal reporting procedures with the Whistleblower Protection Act, please contact us at info@vanbladeladvocaten.nl.
