24 July 2024
Whistleblowers are indeed protected from dismissal. What does this mean in practice?
In 2023, the Whistleblower Protection Act came into effect. This law protects employees who expose wrongdoing within a company, in other words: Whistleblowers. Whistleblowers cannot be dismissed simply because of this law. The protection of Whistleblowers has recently been reaffirmed in a ruling by the District Court of Central Netherlands.
An employee who is acting in good faith and has a reasonable suspicion of wrongdoing within the company where they work can report this. This can be done internally or to an external organization. The employer is obligated to have an internal complaints procedure for this purpose. The wrongdoing that the Whistleblower wishes to report must serve the public interest. A violation of Union law is also considered wrongdoing. An example is a danger to public health or the safety of individuals. An individual employment dispute is not considered wrongdoing.
The employee must have a reasonable suspicion that the facts are correct. This means that the reasonable suspicion must be substantiated with documents. During and after making this report, the employee must not be disadvantaged. One form of disadvantage is the dismissal of the Whistleblower. Unfair dismissal of the Whistleblower is prevented by this prohibition on disadvantage. The employer must prove that any potential disadvantage is not related to the reporting of wrongdoing.
Recently, a well-known Dutch cargo bike manufacturer wanted to dismiss its mechanic. This mechanic was causing ‘conflicts’ and acting ‘escalatory’ in the workplace. The manufacturer wanted to dismiss this employee on the grounds of the employee’s culpable conduct and a disrupted employment relationship. The employee’s behavior in the workplace had deteriorated: he was said to shout and use threatening language in the workplace. He was also falsely claiming to be a ‘whistleblower’, according to the manufacturer.
The mechanic defended himself. He claimed to be treated poorly precisely because he raised serious concerns. The cargo bike that his employer was putting on the market was not safe enough. The mechanic reported this to his superiors multiple times. This was to no avail. His reports were ignored, and the mechanic was labeled as a ‘difficult’ employee.
The employer then went to court and requested the termination of the employment contract. The court did not grant this request. According to the court, the mechanic was being dismissed because he had raised concerns about the safety of the cargo bike. With a reference to the Whistleblower Scheme, the mechanic is protected against dismissal. The termination of the employment contract does not proceed, and the protection of the Whistleblower is once again affirmed. [1]
The Whistleblower Scheme obliges employers to establish an internal complaints procedure so that employees can expose wrongdoing. If the employee then exposes wrongdoing, the employee is protected against dismissal. In a recent ruling by the District Court of Central Netherlands, this right of the employee has once again been confirmed.
Does your organization not yet have a whistleblower scheme that complies with the Whistleblower Protection Act? Or do you have other questions about the dismissal of employees? Please feel free to contact us.
[1] Rechtbank Midden-Nederland, 5 maart 2024, ECLI:NL:RBMNE:2024:1257.
