On 24 January 2023, the Dutch Senate approved the bill Whistleblowers Protection Act. This bill serves to implement the European Whistleblowing Directive (Directive (EU) 2019/1937) and introduces new, more protective measures regarding whistleblowers. The Whistleblowers Protection Act will amend the existing of Whistleblowers Authority Act. Below, we will discuss the main changes in brief.
Requirements set on internal reporting
- Stricter requirements will be set on the internal reporting procedure, such as:
- The reporting person has to receive an acknowledgement of receipt of the report within seven days.
- The employer has to inform the reporting person within three months from the acknowledgement of receipt of the assessment of the report and the follow-up (if applicable);
- Employers have to keep a record of the reports in a designated register.
Definition of malpractice
- The definition of a “malpractice” that can be reported is extended. A malpractice can be:
- a breach or a risk of breach of Union law (European law); or
- an act or omission in which the public interest is at stake.
- According to the Whistleblowers Protection Act, the public interest is at stake in any case if the act or omission affects not only personal interests and if there is a pattern or a structural nature, or if the act or omission is serious or sizeable.
Reporting internally first no longer required
- Whistleblowers will no longer be obliged to make an internal report first, but can submit an external report at once to the Dutch Whistleblowers Authority or another competent authority.
- Incidentally, reporting a malpractice internally first remains the most desirable option and the starting point.
Extension of protective measures
The ban on causing detriment is extended. All forms of causing detriment will be prohibited. For example, this will include coercion, intimidation, harassment, exclusion or blacklisting a reporting person. Threats of and attempts at causing detriment are also covered by the ban on causing detriment.
- The burden of proof for detrimental action is shifted from the reporting person to the employer. Reporting persons who have been caused detriment do not have to prove anymore that they have been caused detriment as a result of their report. It is the employer who will have to prove that the detrimental action has nothing to do with the report.
- A ban on non-disclosure clauses will apply, as far as such a clause limits the right of the reporting person, or deprives the reporting person of his right, to report or disclose a malpractice.
Larger circle of protected persons
- The circle of persons protected against detrimental action is extended. Not only (former) employees and civil servants are protected. Reports can be submitted by any person who gets in touch with information in a work-related context. This includes sole traders, shareholders, trainees, volunteers, (sub)contractors and suppliers.
- Natural or legal persons who support a reporting person, such as relatives or colleagues of the reporting person, will also be protected under the new Act.
New role for employee participation
- The staff representation will get a right to consent to any amendment, adoption or repeal of an internal reporting procedure for whistleblowers. At present, the Works Council already has this right.
- If there is no obligation to establish a Works Council or a staff representation, a majority of the staff will have to agree to the adoption of the internal reporting procedure.
Enforcement and sanctions
- Any interested employee may request the Subdistrict Court to set a term within which the employer must adopt an internal reporting procedure.
- The Dutch Whistleblowers Authority gets powers to impose sanctions in the event of a breach of: (i) the obligation to establish an internal reporting procedure; (ii) the recommendations to the employer with reference to an investigation by the House; (iii) the ban on causing detriment. A sanction may consist of a penalty, for example.
Effective date
- The Protection of Whistleblowers Act was published in the Government Gazette on Friday, 17 February, and entered into effect on 18 February. Not all parts of the Act entered into effect. The available sanctions for the House of Whistleblowers and the way of recording of making an anonymous report will enter into effect at a later time. At present, it is not clear yet when this will be.
- Large employers (with at least 250 employees) will have to comply with the new Act and adjust their internal reporting channels.
- The requirements set on internal reporting channels for medium-sized employers (50-249 employees) in the private sector will not become effective prior to 17 December 2023.
- Employers in the public sector are already bound by the new protection measures since 17 December 2021, as a result of the vertical effect of the EU Directive’s provisions.
Conclusion
Employers with at least 50 employees must adjust their internal reporting procedures for whistleblowers in line with the new Act. It is important to involve the Works Council or the staff representation in this process in good time.
