News Update Employment & Pensions
31 January 2023
In 2019, the European Union adopted the Whistleblower Directive. The purpose of this Directive is to provide whistleblowers with better protection and to harmonise European legislation in this area.
In the Netherlands, the Whistleblowers Authority Act (Wet Huis voor klokkenluiders) has included provisions for whistleblowers since 1 July 2016. It makes provision for a compulsory internal reporting procedure for employers who usually have at least 50 employees, and stipulates matters that the procedure must include in any event. This Act also provides for the formation of the Whistleblowers Authority ("Authority"), which gives whistleblowers advice on making a report and explains their legal protection. In addition, the Authority investigates abuses where other authorities do not have the powers to do so and investigates how whistleblowers are treated following a report of a suspected abuse. To protect whistleblowers, legislation such as the Dutch Civil Code includes a disadvantage ban.
The Whistleblowers Protection Act amends the current Whistleblowers Authority Act in order to comply with the European Whistleblower Directive. It is still unclear when the new Act will enter into force, but employers in the private sector who have fewer than 250 employees have until 17 December 2023 to bring their reporting procedure in line with it.
We list the most important changes for you.
Internal reporting procedures
Under the new Act, whistleblowers no longer need to start by making an internal report, but may report directly to an external reporting channel. ‘Competent authorities’ will be designated to receive and investigate these reports or take measures following a report of an infringement of European Union law. Examples of these authorities are:
- the Netherlands Authority for Consumers & Markets (Autoriteit Consument en Markt, ACM) for infringements of consumer law;
- the Dutch Data Protection Authority (Autoriteit persoonsgegevens, AP) for infringements of the General Data Protection Regulation (GDPR);
- De Nederlandsche Bank N.V. (DNB) and the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten, AFM) for infringements of financial and economic rules;
- the Dutch Healthcare Authority (Nederlandse Zorgautoriteit);
- the Whistleblowers Authority;
- the Inspectorate for Health and Youth Care (Inspectie gezondheidszorg en jeugd);
- the Authority for Nuclear Safety and Radiation Protection (Autoriteit Nucleaire Veiligheid en Stralingsbescherming, ANVS).
The whistleblower must receive confirmation of receipt of the report within seven days and must receive information on the assessment of the report (feedback) within a reasonable period of no more than three months.
In addition, employers will soon be required to keep a record of reports, and there must be an option to make the reports orally. It must also be possible to report suspected infringements through that same internal procedure.
An option is being introduced to make an anonymous request to the Authority for an investigation. The identity of the whistleblower will then remain unknown to the Authority. In that case, a lawyer or confidential counsellor will maintain contact with the Authority and the whistleblower.
Enlarging the circle of protected persons
Anyone who comes across an abuse or infringement of European Directives or Regulations during the course of their work, and who reports this on reasonable grounds and is disadvantaged as a result will be protected under the new Act. This protection extends not only to employees and civil servants, but also to volunteers, interns, the self-employed, contractors, subcontractors, shareholders and job applicants. Furthermore, individuals who carry out internal investigations into potential abuses will also be able to claim protection.
A whistleblower may not be disadvantaged during or after the handling of a report or disclosure of a suspected abuse. Under the new Act, whistleblowers who are suspended, dismissed, denied a promotion, transferred or given a fine, for example, will soon no longer need to demonstrate that they have been disadvantaged because of their report. The burden of proof shifts to the employer. Whistleblowers merely need to prove that they have been disadvantaged and have made a report. The courts will assume that the disadvantage is the result of the report until the opposite is proven. The employer who imposed the harmful measure in question or carried out a harmful act must then demonstrate that it did not do so because of the report, but for some other reason. The disadvantage ban also applies for natural persons and legal entities assisting a whistleblower.
Extending the concept of abuse
The concept of abuse also covers reports of a suspected infringement of European law and infringements of an employer’s internal rules, such as codes of conduct and corporate rules. In each case a public interest must be involved.
Works councils have a right of consent as regards the setting up of an internal reporting procedure. If an employer sets up or follows an internal reporting procedure that the works council in question has not consented to, the works council may invoke the nullity of that decision within one month. What is new is that, in undertakings with fewer than 50 employees, the employee representative body must agree to the setting up of the internal reporting procedure.
Organisations that are not required to set up a works council or employee representative body require the consent of the majority of their employees when setting up the internal reporting procedure, unless the details of this procedure are laid down in a collective labour agreement.
Another new addition is that, if there is no internal reporting procedure, any interested employee may request the subdistrict court to set a period of time within which the employer must set up an internal reporting procedure that complies with the statutory requirements. This also applies if the statutory requirements are not implemented fully.
Enforcement and sanctions
The House of Representatives has passed an amendment to ensure that the Authority's investigation department is given a supervisory duty and administrative sanctioning powers. These sanctioning powers concern the organisation of the internal reporting procedure by the employer, any failure by the employer to comply with the recommendations of the investigation department, and the employer’s conduct towards the employee in response to a report of suspected abuse.
See for more information Whistleblowers Protection Act for employers (only in Dutch).