The Whistleblowers Protection Act was passed by the Senate on 24 January 2023 and entered into force on 18 February. With this Act, the Netherlands implements the 2019 European Whistleblowers Directive. The Act replaces the current House for Whistleblowers Act.
The Act brings significant changes for employers. The main changes employers need to consider are as follows:
- The reporter is given the option to report directly externally to the House for Whistleblowers or a competent authority. The reporter is no longer required to report internally first, but it remains the preference and is encouraged as much as possible.
- The reporter is given the possibility – under conditions – to make a report public, for example to the media.
- The protected reports are extended to:
- a suspicion of social wrongdoing;
- a (or an imminent risk of a) violation of a statutory provision or internal rules that have a legal basis, whereby the public interest is at stake. This is in any case the case if the act or omission does not only affect personal interests, but has a pattern or structural character or the act or omission is serious or extensive; and
- a (or an imminent risk of a) breach of Union law. This includes infringements of certain European directives or regulations in the field of, for example, financial services, products and markets, prevention of money laundering and terrorist financing, consumer protection, protection of the environment or public health.
- The current prohibition of retaliation is extended. Not just suspension, dismissal or change of place of work, but any form of retaliation, including threats of detriment, will be prohibited. This could include intimidation or bullying of the reporter.
- The burden of proof of the prohibition of detriment shifts to the employer. The employer will have to prove that the detriment is unrelated to the report.
- The group of persons protected is extended to anyone who encounters wrongdoing or infringement in the course of his or her work-related activities for the company, so not only employees, but also trainees, volunteers, self-employed workers, job applicants, shareholders, suppliers, as well as involved family members and colleagues are protected.
- Requirements for the internal reporting channel are made more stringent:
- Employers must send an acknowledgement of receipt of the report within seven days and provide information on the assessment and follow-up of the report within a reasonable time, but in any event no later than three months.
- Employers must register reports in an internal register set up for this purpose.
- The employee must be able to make the report both in writing and verbally.
- There will be a prohibition of non-disclosure clauses, for example in termination agreements, for protected reporters.
- The reporter is given the possibility to report anonymously through an intermediary, for example through a lawyer.
- The consent of the works council, the employee representative body, or in their absence, half of the employees shall be required when establishing the internal reporting procedure.
- The House of Whistleblowers will have the authority to impose administrative sanctions on employers who fail to comply with the Act.
When must an employer comply with the new Act?
- For employers with fewer than 50 employees: an internal reporting procedure is not mandatory, unless the company operates in a specific sector, such as the financial sector.
- For employers with 50 to 249 employees: these companies must comply with the Act by 17 December 2023.
- For employers with 250 or more employees: as of 18 February 2023 employers must comply with the Act.
- For public sector employers: as of 17 December 2021 these employers must comply with the requirements of the Directive and since 18 February 2023 they need to comply with the Act.
Some provisions do not enter into force immediately, because further regulation is required. This applies for instance to the possibility to report anonymously. Companies therefore, do not yet need to give this option in their internal procedure. We would be happy to help your organisation asses your current internal reporting procedure in the light of the new legislation or the implementation of this internal reporting procedure. If so, please contact us