Today, the Senate approved the Whistleblower Protection Act (Wet bescherming klokkenluiders) (Wbk). This law replaces the Whistleblowers Authority Act (Wet Huis voor klokkenluiders) (Wet HvK) and has important consequences for employers. In this article, we provide an overview of the most important changes.
The Wet HvK has been in effect in the Netherlands since 1 July 2016. Under this law, employers with more than 50 employees, must have an internal reporting procedure in place to allow any suspected misconduct to be reported. In this respect, anyone who reports such suspicions may receive protection against detriment. In order to improve the protection of whistleblowers and having regard to the fact that the protection of whistleblowers varies greatly amongst the EU member states, on 23 October 2019 the European Directive on the protection of persons who report breaches of Union law, was introduced (the Directive).
In relation to the implementation of the Directive into Dutch law, a bill (the Bill) was submitted to the House of Representatives on 1 June 2021. After much criticism, the initial Bill was amended on several occasions through a "Memorandum of Amendment’. On 20 December 2022, the House of Representatives adopted the Bill, including a number of amendments, and today the Senate adopted the Wbk.
The Wbk leads to several important changes compared to the Wet HvK that further strengthen the position of a whistleblower. We have listed several major changes of the Wbk below:
- Additional requirements internal reporting procedure
An employer who employs at least fifty employees must establish an internal reporting procedure for these employees to enable these employees to report suspected wrongdoings within the organization. Please note that the definition ‘employee’ in the Wbk includes not only employees within the meaning of Book 7, Title 10, of the Dutch Civil Code, but also self-employed workers, trainees and volunteers working in that organization. This means that employers that employ at least 50 people including self-employed workers, volunteers and trainees are required to establish an internal reporting procedure. Furthermore, there are certain companies (e.g. financial institutions) that must establish an internal reporting procedure on the basis of the Wbp, even if less than fifty employees are working for such company.
On the basis of the Wbk, several additional requirements are imposed to employers in relation to the internal reporting procedure. For example, it must be clear from the internal reporting procedure that there are at least three ways to report: in writing, verbally over the telephone and through an interview on location. Furthermore, it must be clear from the internal reporting procedure how the suspicion of a wrongdoing can be reported anonymously. Certain deadlines also apply to the internal reporting procedure. For example, the reporting person must receive a confirmation of receipt of the report within 7 days, and within a reasonable period (not exceeding three months) after the confirmation of receipt, the reporting person must receive further information about the assessment of the report and any follow-up. As soon as a report is received, the employer should register this. Importantly, the Wbk imposes additional requirements for the registration of a verbal report (e.g. prior permission if the report is recorded). Furthermore, the details of the report in the register must be deleted when they are no longer necessary.
- Definition of 'wrongdoing' expanded
On the basis of the Wet HvK, a suspicion of wrongdoing can be reported if - in short - this suspicion is based on reasonable grounds and if the public interest is at stake. A violation or threat of violation of Union law has been added to the definition of 'wrongdoing' under the Wbk. Also, a violation or threat of violation of internal rules containing an obligation and established by the employer pursuant to a statutory provision is now a 'wrongdoing'. Furthermore, the Wbk provides for a clarification of the term ‘public interest'. The ‘public interest’ is at stake if the act (or omission) has a structural character or if the act (or omission) is serious and substantial. For example, if an employee has a conflict with his employer, in principle this does not in itself constitute a 'wrongdoing'. A 'wrongdoing' must go beyond the individual.
- Direct external reporting is now possible
Based on the Wet HvK, the starting point was that an employee was required to make an internal report first before being allowed to report externally. This requirement is now dropped in the Wbk, meaning that a reporting person may now report directly to an external reporting entity. These external reporting entities are listed in the Wbk (for example: Authority for Consumers & Markets (Autoriteit Consument en Markt), Authority for the Financial Markets (Autoriteit Financiële Markten), Data Protection Authority (Autoriteit Persoonsgegevens), House for Whistleblowers (Huis voor Klokkenluiders) and the Healthcare and Youth Inspectorate (Inspectie gezondheidszorg en jeugd)) and this list may be further expanded pursuant to an order in council or ministerial regulation. It is therefore extra important for an employer to have its internal reporting procedure properly in place to ensure that employees will first report internally.
- Requirements for external reporting entities
The aforementioned external reporting entities are subject to additional requirements based on the Wbk. For example, the external reporting entities must set up a reporting procedure and appoint personnel to handle the report. These external reporting entities should further, among other things, make information available about the contact details of the reporting procedure, the specific procedures applicable to submitting a report (including applicable deadlines), the way a report is handled, the investigation and any measures that may be taken in relation thereto and the applicable protective provisions that follow from the Wbk.
- Additional protection against detrimental actions
If a reporting person has made a report in accordance with the Wbk, an employer may not undertake any action to the detriment of an employee (the so-called prohibition of detriment). The Wbk includes a list of non-exhaustive examples of 'detriment'. Examples include dismissal, negative evaluation, harassment or discrimination. In the context of the prohibition of detriment, the Wbk distinguishes (i) actions to the detriment of an employee during and after the handling of a report of suspected misconduct and (ii) actions to the detriment of an employee during and after the publication of suspected misconduct. The prohibition of detriment only applies if the reporting person has reported or published in accordance with the rules provided for in the Wbk. For example, a reporting person must have reasonable grounds to believe that the reported information is correct at the time of the report. In other words, the reporting person must have collected sufficient information, so the report cannot be made lightly. Furthermore, in the case of publication, (a) the reporting person must have reasonable grounds to believe that the information is correct at the time of publication, (b) the reporting person must, in principle, have either reported internally and externally or only externally, and (c) the investigation must be insufficiently progressed (for example, if deadlines are exceeded during the procedure). Under exceptional circumstances, the reporting person may directly publish the wrongdoing, namely (i) when the wrongdoing is an (imminent or real) danger to the public interest, (ii) there is a risk that the reporting person will be disadvantaged by an external reporting entity or (ii) it is unlikely that the wrongdoing will be effectively remedied. Another new element is that, in the event of a report or publication of suspected wrongdoing, a reporting person is not liable for a breach of any restriction on the publication of information (e.g. a confidentiality clause), provided that the reporting person (i) has reasonable grounds that the report or publication of the information is necessary for the publication of the wrongdoing and (ii) the report or publication was made in accordance with the Wbk. In addition, the Wbk provides that if a reporting person is disadvantaged during and after the handling of a report (internally or externally), or after publication of a suspicion of wrongdoing, it is presumed that the disadvantage (i.e. the detrimental action) is the result of the report or publication. The burden of proof is thus reversed.
- Opening the internal reporting procedure to third parties
The Wbk clarifies that the internal reporting procedure can be opened to persons who are not employees (within the meaning of the Wbk) but perform or have performed work in another capacity. This allows the group of reporters to be broadened to ensure that these third parties also report internally in the first instance. If the employer opens the internal reporting procedure to third parties, the employer should make information about the internal reporting procedure available to these third parties in writing or electronically. Furthermore, the third parties, together with the regular employees, must be informed about the way a suspicion of wrongdoing can be reported outside the organization (i.e. to an external reporting entity) and what legal protection they have when reporting a suspicion of wrongdoing.
If an employer does not establish an internal reporting procedure, even though he is obliged to do so, any interested employee can request the subdistrict court to determine that the employer need to establish an internal reporting procedure within a reasonable timeframe. Furthermore, the Wbk provides that the investigation department of the House of Whistleblowers is authorized to impose an administrative enforcement order (last onder bestuursdwang) or an administrative fine (bestuurlijke boete), if, for example, no internal reporting procedure is established, certain information obligations have not been met or if a reporting person is disadvantaged.
Role of employee participation
On the basis of article 27 (1) (m) of the Works Councils Act (WCA), the works council (ondernemingsraad) has a right of consent regarding the amendment, adoption or withdrawal of a whistleblower scheme. What is new is that the WCA is being amended so that also the employee representation (personeelsvertegenwoordiging) has a right of consent for the establishment of an internal reporting procedure. If an employer has not set up a works council or employee representation and is not obliged to do so, the consent of more than half of the personnel will suffice. Please note that this does not apply if an employer is obliged to establish a works council (for 50 or more employees) or employee representation (for 10 to 50 employees if so requested), but no works council or employee representation has been established. In that case, the substitute consent of the majority of employees will not suffice. There are quite a few companies that are required to establish a works council, but have not done so, for example, because there is insufficient enthusiasm among the employees to take a seat on the works council. It is yet unclear how these companies can best deal with this obligation.
Entry into force
Public employers (including the central government, municipalities, provinces, water boards and public-law independent administrative bodies) must already comply with the new requirements of the Directive as of 17 December 2021. Private employers with 250 or more employees must comply with the Wbk immediately as of its entry into force on a date determined by Royal Decree (koninklijk besluit) and must therefore have amended (or established) their internal reporting procedure by then. We assume that the Wbk will enter into force in the near future. Employers with 50 to 249 employees have been granted a longer implementation period. The Wbk provides that these employers must comply with the Wbk no later than 17 December 2023. In view of the above, it is important to involve the relevant participation bodies in time.
Please note that the Wbk may be further amended in the future. Furthermore, the Wbk provides the option to set additional rules on certain issues by order in council or ministerial regulation, so we expect additions to the Wbk in that area as well.