On 1 March 2016, the Upper House adopted the House for Whistleblowers Act (Wet Huis voor klokkenluiders). The Lower House had consented to the first version of the Bill as early as December 2013. The Upper House, however, had a number of objections, further to which the initiators submitted an adjusted legislative proposal to the Lower House at the end of 2014. The Act is expected to enter into force on 1 July 2016.
The House for Whistleblowers Act introduces legal protection for whistleblowers and provides for the formation of a new authoritative body, the House for Whistleblowers (the House), which is to advise on and conduct inquiry into the social abuse. The Act is applicable to employees and self-employed persons in both the public and the private sectors. An overview of the most important aspects of the Act is set out below.
Mandatory whistleblowers regulation
Employers who as a rule have 50 employees in service are obliged to adopt a whistleblowers’ regulation. This regulation must contain a number of mandatory elements. For example, the regulation must set out the manner in which the internal notification is dealt with, when there is a suspicion of abuse, which officer must be notified of the abuse, that upon request, the employer will treat the notification confidentiality, and that the employee is given the opportunity to consult an advisor confidentially. Furthermore, the employer must provide information about the circumstances under which a suspicion of an abuse may be disclosed externally. The whistleblowers regulation must be approved by the Works Council.
House for whistleblowers
The House is divided into an Advisory department and an Inquiries department. These departments are kept strictly separate from each other. The Advisory department has the task of informing employees about the steps they can take in the case of suspicion of abuse and to refer them to, for example, other (supervisory) bodies. The Inquiries department can, upon request of an employee or in its own official capacity, institute an inquiry into the suspicion of abuse. In addition, the Inquiries department can conduct inquiry into the manner in which the employer has conducted itself towards the employee further to a notification of a suspicion of abuse. Once the inquiry has been completed, the Inquiries department draws up a report in which it makes recommendations, if any, to the employer. The report may be disclosed to the public.
The Inquires department is authorised to request information and to demand inspection of business documents. The employer (as well as those who are his subordinates, witnesses and the notifying person) is obliged to cooperate with the inquiry and is also obliged to appear for questioning. Cooperation may only be refused if it concerns information or documents the providing of which would mean that this is in conflict with the interests of national security, or it would otherwise entail a violation of professional secrecy or statutory regulations. It can also be refused if the person himself or his relatives should be exposed to the danger of a criminal sentence.
The starting point is that a suspicion of abuse must first be reported internally. Only once there is a suspicion that this has not been dealt with properly, can an employee turn to the House and request an inquiry. It is only in the situation that it cannot be reasonably asked of an informant that he reports the suspicion of abuse to the employer that he may turn directly to the House. In addition, the House (amongst others) will not institute an inquiry if the request is obviously unfounded, the public interest in the inquiry or the seriousness of the abuse is insufficient, or the suspicion of the abuse is primarily subject to the assessment of another authority (such as the Public Prosecutions Department or a supervisory body), and that the relevant authority treats or has treated the notification properly.
An employee who reports a suspicion of abuse (to the employer, the House, or to another competent body) may not be prejudiced, i.e., adversely affected, in his legal position on account of his notification. This protection applies during and after the dealing with the notification. Acts of adverse treatment mean, amongst others, dismissal, transfer, the refusal of a request for a transfer, the withholding of a pay rise or the refusal of leave. In order to successfully invoke legal protection, the notification must satisfy three requirements. There must be a matter of a suspicion of abuse based on reasonable grounds, the notification must be made ‘in good faith hand as is fit and proper’, and the employee must have acted with all due care both in the procedural and in the material sense.
For the time being, the prohibition of prejudice applies only to persons who are employed on the basis of an employment agreement or appointment as civil servant, whereas the law contains a broader scope of application (such as self-employed persons and trainees). The Upper House, therefore, has requested the government to amend the Act on this point.