After a legislative process that lasted nearly four years, the Dutch parliament finally approved a bill to create an Institute for Whistleblowers on 1 March 2016. The date on which the bill is to enter into force has not yet been announced. The bill requires companies with more than 50 employees to adopt an internal whistleblower policy. The bill leaves room to adapt the policy to the company’s own needs, but there are some ground rules. For example, the policy must describe how misconduct can be reported internally and to which officers. In addition, employees – and this includes trainees and independent contractors – should have the opportunity to consult an advisor or designated officer. Listed companies already have an obligation under the Dutch Corporate Governance Code to have a whistleblower policy in place, but as the new bill contains additional requirements, it is recommended that existing policies be reviewed.
Institute for Whistleblowers
The Institute for Whistleblowers will be established as an independent administrative body (NDPB) and has two main tasks: advice and investigation. The advisory division advises and supports whistleblowers. The investigation division decides whether to investigate a reported problem and conducts the investigation. It then draws up a report and decides whether to make recommendations to the company. Recommendations are not binding and do not create any civil liability or suspicion of criminal conduct. But the findings of an investigation may result in criminal enforcement. Information that is not included in the report remains confidential, and the published report will not state the names of the company and the whistleblower.
Employees are allowed to report to the Institute for Whistleblowers only if they reported internally first, unless this would be unreasonable to expect. Once a report has been filed, only the whistleblower can decide whether to enter the investigation phase. When this phase has started, only the whistleblower can determine which documents can be included in the investigation.
Internal whistleblower policy
Employees must be given the opportunity to internally report suspected misconduct. The policy should state what constitutes “suspected misconduct,” but the bill includes a suggested definition. The bill applies not only to employees, but also to trainees and independent contractors. Companies may not retaliate against employees that report potential misconduct internally or externally.
The bill leaves room to adapt the policy to the company’s needs, but sets some ground rules on what should be included in the policy. For instance, the policy must describe how a report is processed, and to which officers the misconduct can be reported to. If so requested by the whistleblower, the company must treat the report as confidential. Employees should be given the opportunity to consult an advisor (for example, a lawyer or a designated officer in the company). The policy can be made available in hardcopy or electronically. Companies that have a works council should be aware that works council consent is required before the policy is published internally.
Motion to give legal protection to non-employees
The First Chamber of the Dutch parliament also voted in favour of a motion urging the Dutch government to extend legal protection to whistleblowers who have performed work for the company in question but not as employees. The bill on the Institute for Whistleblowers will need to be amended to include this form of protection.