Bill to amend the House for Whistleblowers Act
On 18 December 2020, the bill to amend the House for Whistleblowers Act was submitted to the Council of State. The bill introduces new rules with respect to whistleblowing and will lead to more obligations for employers.
Whistleblower protection is fragmented across the EU Member States. The European Union sees the negative impacts thereof not only at national level, but also at European level. Therefore, common minimum standards should be introduced in order to ensure that whistleblowers are effectively protected. This bill aims to implement the European directive for the protection of whistleblowers of 23 October 2019 (the Directive).
Although the Dutch reporting procedure for reporting (suspected) malpractices is only a few years old, employers who employ at least 50 employees are forced by the bill to (again) adjust this reporting procedure. The reporting channel should also be able to be used for notifications about breaches of European laws and regulations. Furthermore, stricter requirements with respect to the reporting channel are also being introduced, such as specific deadlines for sending a confirmation of receipt and providing information about next steps.
In addition, the circle of persons who receive support and legal protection in the event of a notification of a (suspected) malpractice will be expanded. Under current legislation, legal protection is offered only to employees and civil servants. With the bill, this circle is to be expanded, because a link is sought with the term 'reporting person’. The protection also applies to those who assist the reporting person and third parties involved. As a result, self-employed persons, directors, shareholders, colleagues and family will also have protection.
Furthermore, the bill designates a number of competent authorities as external reporting channels, such as the Whistleblowers Authority, the Dutch Authority for Consumers & Markets and the Dutch Authority for the Financial Markets.
The bill also entails several measures to protect whistleblowers against retaliation, such as suspension, demotion or intimidation. Under current law, detriment of the reporting person is already prohibited. In order to increase the protection of whistleblowers, the bill includes a reversal of the burden of proof. This means that the reporting person only has to demonstrate that he has notified and that he has been disadvantaged. Subsequently, the employer must demonstrate that the disadvantaging is not the result of the notification. In addition, the bill includes an exemption of the reporting person from legal proceedings related to the notification.
The bill is criticized. The non-governmental organisation Transparency International Netherlands fears that several "reporting channels" may exist side by side, which might lead to confusion. Furthermore, the Directive would have been a good opportunity to repair defects in the current Whistleblowers House Act. The Whistleblowers Authority has been highly criticized, as it became publicly known in 2019 that no investigation into a malpractice has been completed since it was established in 2016. Unfortunately, nothing has been done with the criticism in the bill.
Member states are obligated to implement the Directive in their national legislation by 17 December 2021 at the latest. Once implemented, employers will have to get started quickly and involve the works council in time. After all, the works council has a right of consent for a decision for adoption or amendment of a procedure for the handling of reports with respect to a (suspected) malpractice as referred to in the Whistleblowers House Act.
Hermine VoûtePartner Attorney at law
P. Hermine E. Voûte, attorney at law, is member of the Employment & Benefits practice group in the Netherlands and chairwoman of the Diversity & Inclusion committee. She has over 33 years’ all-round experience in employment law, with a particular focus on high-profile dismissals, restructurings and collective dismissals, and co-determination procedures.T: +31 20 578 59 75 E: email@example.com