Whistleblower Protection Act passed by Dutch Senate

On Jan. 24, 2023, the Whistleblowers Protection Act was passed by the Senate. It was about time, because the European Commission started infraction proceedings against the Dutch state almost a year ago for the late implementation of the European Whistleblowers Directive. In this blog, I will explain the content of the directive and the law and what the consequences will be for employers once the law enters into force.

The Whistleblower Directive

The Whistleblowing Directive was adopted by the European Parliament and the Council on October 23, 2019. This directive aims to protect individuals who report wrongdoing within an organization (violations of EU law) to the appropriate (internal or external) body. Indeed, fear of retaliation may deter these individuals (also known as whistleblowers) from reporting a wrongdoing they have identified. This, while reporting can actually help prevent or reveal these wrongdoings, and in doing so, whistleblowers fulfill an important social enforcement function. To serve this purpose, the Directive contains a description of the violations covered (material scope), the persons protected (personal scope) and the conditions under which they are protected.

In short, the Directive amounts to protecting:

• Anyone who is employed (as an employee, self-employed or otherwise under supervision, such as an intern);
• at a public or private organization;
• involving a violation of European Union law;
• in areas such as safety (transportation, environment, public health) is made;
• he/she has good reason to believe that a violation has occurred;
• and reported internally or externally in accordance with the Directive.

This protection lies in particular in the requirements laid down by the Directive for organizing the internal (by the organization) and external (by the Member State) reporting procedure. The directive prescribes that the reporting procedure must contain sufficient guarantees for careful handling of the report, such as the confidentiality of the reporter's identity.

Whistleblower Protection Act

The Dutch state has thus been a bit late in implementing the directive, but the Netherlands has had the House of Whistleblowers Act since July 1, 2016. Under this, an employer who generally employs at least 50 people must draw up (and submit to the works council an internal reporting procedure. In the procedure, the employer must include, among other things, how the internal report is handled, which situations qualify as wrongdoing that can be reported, and that the employer will treat the whistleblower’s report confidentially.

When the Whistleblower Protection Act is introduced, the House for Whistleblowers Act will be amended. The main (and most important) changes are as follows:

• Expansion of the groups of persons that are protected. Under the previous law, only (former) employees and civil servants were protected, but from now on "anyone working within an organization" will be protected. This includes, for example, volunteers, job applicants, suppliers, contractors and shareholders;
• The burden of proof that a whistleblower has suffered retaliation is placed on the employer rather than the whistleblower;
• The whistleblower does not have to report internally first, but may report externally to the House for Whistleblowers directly;
• The employee representation or ‘pvt’ – so not just the works council – must give its consent prior to amending, adopting or revoking an internal reporting regulation;
• Expansion of the concept of wrongdoing (not just a suspicion of wrongdoing but) - in short - an imminent violation of (European) rules of social interest is now also protected;
• More stringent requirements are imposed on both the internal and external reporting procedure, such as a registration requirement, sending an acknowledgement of receipt, and allowing both an oral and written report.

What does this mean for an employer?

The exact date when the new law will take effect has not yet been determined. However, employers will have to start working on updating their whistleblower regulations. After all, the wrongdoing that can be reported have been expanded and more (types of) whistleblowers can use the scheme. In addition, there are stricter requirements for a whistleblower regulation. Please note that the introduction of an adapted whistleblower policy requires the consent of the Works Council (or pvt), so these must be involved on time.

We are happy to think along with you and can advise on adapting and implementing whistleblower regulations. Feel free to contact our Employment team!