20 September 2023

Adaptation of whistleblowers’ scheme to new law

By Koen Vermeulen

Adaptation of whistleblowers' scheme to new law; employers will be required to adapt internal whistleblower reporting procedures and whistleblowing employees will have increased protection from measures under employment law.

That is very briefly what will change for most employers from 17 December 2023. Work to be done, then! This is related to the new Whistleblowers Protection Act (Wet bescherming klokkenluiders) coming into force for employers that have 50-249 employees.

Current situation in a nutshell

For some time, employers with 50 or more employees have been required to establish an internal reporting scheme for suspected wrongdoing, a so-called whistleblowers’ scheme. The current situation is that an employee first makes a report internally and only then makes a report to the Whistleblowers Authority (Huis voor Klokkenluiders). The law currently already protects the reporter of wrongdoing against any disadvantage, such as dismissal. The works council also currently has the right of consent regarding the amendment, adoption or withdrawal of a whistleblowers’ scheme.

Situation as of 17 December 2023 in a nutshell

In a previous blog, we wrote about the changes to legislation regarding the protection of whistleblowers. In December 2022 and January 2023, the Lower House and Upper House agreed to the changes, meaning that employers will have to deal with more far-reaching requirements and additional employee protection. Some of the main changes:

 

More legal protection for working people
  • The employee no longer has to report wrongdoing internally first. He/she can report directly to the Whistleblowers Authority. They can then immediately start investigating the employer;
  • The employee reporting suspected wrongdoing is protected against any form of disadvantage to his/her legal position, including attempts and threats of disadvantage by the employer;
  • The protection of the employee against disadvantage is extended further. In fact, the employer will now need to prove that any disadvantage is not related to the reporting of wrongdoing;
  • The protection of the reporting employee against disadvantage only applies, however, when reporting wrongdoing within the meaning of the law, which must always summarily involve a social interest. The scope of the concept of ‘wrongdoing’ is extended, which means that the reporting employee is more likely to be able to invoke protection against disadvantage;
  • Incidentally, not only employees, but also interns, volunteers, self-employed workers and job applicants can make a protected report of wrongdoing.

 

Ban on confidentiality clauses, role of works council and shorter deadlines

Furthermore, the following changes are important for employers:

  • The employer must respond to a report of suspected wrongdoing within a much shorter time;
  • As of that date, there is a ban on the employer imposing a so-called confidentiality clause; i.e. a ban on the prohibition of making statements about wrongdoing. A confidentiality clause in an employment contract or termination agreement remains permissible, but an agreement that restricts the employee from reporting or disclosing suspected wrongdoing becomes null and void;
  • Both the works council and the employee representation in small companies retain or are granted the right of consent regarding the change, adoption or withdrawal of an internal reporting scheme.

 

What does this mean in specific terms?

Employers must adapt existing internal whistleblower reporting schemes to the new legal requirements by 17 December 2023. The works council or employee representation therefore has the right of consent in this respect. If an employer fails to do so, the employer will not be fined or otherwise sanctioned.

Indirectly, however, the employer may be affected, because if an internal whistleblower reporting policy is missing or outdated, an employee or the works council can take this to court. In any case, this will not be good for the company’s reputation. And if a reporter feels he/she is not being treated well and the lack of a proper reporting system is a factor in this, that can still lead to compensation and further damage to the employer’s reputation.

How to proceed?

Employers with 50-249 employees, including temporary workers, will therefore have to adjust their internal reporting procedures in the coming months in response to the expected entry into force of the new law on 17 December 2023. It is still unclear when the stricter requirements will apply to companies with more than 250 employees. But it is certain that the new reporting procedure and extra protection against disadvantage will also apply to large employers. That means that all employers should review their existing whistleblowers’ schemes. And where necessary, they should adjust them in time to avoid any reputational damage!

 

More information

Do you have questions about the adaptation of whistleblowers’ scheme to new law? Do you have any other questions about the above? Then please do not hesitate to contact us.

Koen Vermeulen

Koen Vermeulen

Lawyer / associate partner

Koen Vermeulen is your sparring partner for all questions on employment law, employee participation and pensions.

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