Integrity in labor relations has a high priority. This can be seen in the media, but also developments in the legislative field reflect this as can be seen from the newly introduced from the Whistleblowers Protection Act ("Wbk"). As of 17 December 2023, companies employing at least 50 (up to 250) employees are required to establish a reporting scheme for reporting suspected wrongdoing within the company. Employers with at least 250 employees are already required to have a reporting scheme as of 18 February 2023.
Employers that already apply a reporting scheme need to amend this to the stricter requirements of the Wbk. In short, the new reporting scheme must ensure that anyone working for an organization can make an internal or external report of a suspicion of an 'abuse or violation' without being disadvantaged. What exactly does this mean?
Requirements of the reporting scheme
The Wbk is the result of the necessary implementation of European regulations (Directive 2019/1937/EU). The law also has its own terminology. For example, a "reporter" includes - in addition to regular employees - unpaid interns, shareholders, job applicants, volunteers and self-employed workers. In addition, reporters have gained greater protection under the Wbk on a number of fronts.
What are the main changes?
Existing reporting schemes must be updated with the better and new mechanisms. So what should employers take in consideration?
Among other things, employers are obliged to make information available for their employees about the internal reporting scheme, how to report suspected wrongdoing externally, and the legal protection of reporters. The main changes for the reporting scheme and reporter relate to:
1. Procedural deadlines – a report has to be confirmed within 7 days and the employer has to provide an update on the follow-up within 3 months at the latest (Article 2 Wbk).
2. External reporting – The right of reporters to directly and externally report suspected wrongdoing to a competent authority, such as the Dutch Healthcare Authority (“Nederlandse Zorgautoriteit”) (Article 2c Wbk).
3. Protection against disadvantage – The protection of reporters against disadvantage in relation to making a report, such as (the threat of) dismissal, suspension, demotion, a negative assessment or a written reprimand (Article 17 Wbk).
4. The reversal of the burden of proof – If a reporter is disadvantaged during and after the handling of a report, it is presumed that this disadvantage is the result of (the disclosure of) the report (Article 17eb Wbk).
5. Exclusion of liability – A reporter cannot, under conditions, be held liable for the consequences of a breach of the restriction on disclosure of information (Article 17f Wbk).
The Wbk provides specific rules setting out what employers' procedure must comply with. For example, employers must stipulate in the procedure the manner in which a reporter can make his or her report (such as in writing or by telephone) and that an employee has the option of confiding in an advisor. Employers are also required to file reports in a register set up for this purpose. It is also important to establish to which independent officer(s) the suspicion of wrongdoing can be reported and which officers can follow up on the report. Furthermore, if a reporter is for example obstructed in making a report or is disadvantaged, he can file a claim with the civil court for compliance or compensation (potentially with a penalty). Employers should therefore be aware that the Wbk involves significant new obligations.
Broad scope of the Wbk
Because of the broad terminology that is used in de Wbk, the Wbk has a wide-reaching scope.
For example, a 'malpractice' is not only understood as a (risk of) violation of EU law (think of product safety), but also as acts or omissions in which the public interest is at stake. The latter is the case if the act (or omission) does not merely affect personal interests, but has a structural character, or if the act (or omission) is a serious or extensive act (or omission). An example is a violation of a statutory regulation or mandatory internal rules of the employer (such as based on the Working Conditions Act (“Arbowet”)). Another example is a danger to public health, the safety of persons, the environment or the proper functioning of the public service. Recentcase law does show that broadening the terms of the Wbk entails potentially greater legal protection for employees.
In addition, a group of branch in different countries should have a hotline for each country. Employees should be protected with the safeguards provided by the legislation of the specific country when making a report. Organizations with fewer than 50 employees may also fall under the obligations of the Wbk, for example, companies that are "subject to the Wwft obligation" (Article 2(3) Wbk).
The broad scope of the Wbk is also expressed by the Wbk’s consent requirements. In companies with a works council or employee representation, the consent is required for every decision that concerns the establishment, amendment or withdrawal of a reporting procedure (Article 27 (1) (m) WOR). In companies without a works council or employee representation, the consent of at least 50% of all employees is required for the adoption of a reporting scheme. Interested employees can even petition the district court (“kantonrechter”) to have the employer establish a reporting scheme, within the company. In short, co-determination should be involved on time, regarding the right of employees to consent.
Attention! Establish or adjust reporting procedure
Many employers do not currently have a reporting scheme in line with the Wbk. What does this mean? A reporting scheme for whistleblowers is often customized because every organization is specific. This means that it is important to have a reporting scheme in place that is tailored for your company and is, of course, in line with the Wbk. We are happy to assist you and we can draft or amend a reporting scheme for your company at very short notice.
Do you have any questions about the reporting scheme or can we help you on other topics? Do you want a whistleblower scheme that meets the requirements of the law? If so, please contact Yvonne Nijhuis (tel. 088 - 480 4113), or one of our other employment law specialists within Kienhuis Legal.