Employee crosses the line while whistleblowing and is dismissed
A recent judgment of the Sub-district Court North-Holland has resulted in wise lessons for those who want to report an internal abuse in the workplace.
The whistleblower concerned sent a threatening e-mail to the board after he had reported an abuse. The whistleblower also shared confidential information about this abuse. In the present case, partly due to several specific circumstances, the Sub-district Court terminated the employment agreement on the legal dismissal ground of a culpable act or omission of the employee (the e-ground). Although the whistleblower could not prevent his dismissal by invoking the prohibition to prejudice an employee who blows the whistle, he did still receive a severance pay (the transition payment).
Protection against retaliation
According to the law, an employee who reports a suspected abuse must be protected from being prejudiced by his employer or colleagues as a result of the report. Prejudice refers to acts such as dismissal, demotion, transfer, harassment and other forms of intimidation of the employee. The law also states that employees are only protected by the prohibition if they meet the following two requirements: (1) the employee makes the report in good faith and (2) the employee makes the report properly, meaning – amongst other things –that the reporter did not act in his own interest and that the reporter did not deliberately provide false information. It is also important to note that the prohibition of retaliate against an employee only extends to the actions that result from the reporting of the suspected abuse. A whistleblower can therefore still be dismissed on other grounds after a report has been made.
Why was the prohibition against retaliation not applicable to the present case?
This judgment of the Subdistrict Court Alkmaar of 16 April 2019 (ECLI:NL:RBNHO:2019:3965) concerned an employee of approximately 55 years old who had already been employed by the employer (a cooperative trade association) for 22 years. The employee made two mistakes. First, he sent a threatening e-mail to the board setting an ultimatum: the board had to resign and had to inform all members about the abuse or he would report the abuse to the local newspaper. Secondly, a few weeks later he also shared confidential information about the abuse with a member of the trade association.
The Subdistrict Court deemed the way of communicating inappropriate and commanding. Furthermore, the employee must behave as a good employee, which implies discretion and loyalty, even if no confidentiality clause has been agreed. All in all, the Subdistrict Court found the two mistakes to be a culpable act by the employee, also in view of the fact that prior to these mistakes the employer had pointed out to the employee in question that his way of communicating was inappropriate and his duty to keep the information secret until the meeting regarding the suspected abuse would take place – which, moreover, would take place in the near future. The conclusion of the Subdistrict Court was that the employee did not make the report properly and therefore could not invoke the prohibition against retaliation. The Subdistrict Court did take into account the statutory notice period and the employee was entitled to a transition payment.
Moreover, theemployee did not contact the local newspaper and in the meantime proceedings have been brought before the Court of Appeal in Amsterdam about the (suspected) abuse of the trade association involved.
Wise lessons for employers and employees
Employees /would be well advised to seek legal advice before reporting an abuse in order to prevent them from slipping upeven though they have good intentions, like the whistleblower in this case. Companies with more than 50 employees are required to offer employees the possibility to consult an advisor about the suspected abuse. In addition, the employee can turn to the House of Whistleblowers for advice. If all this does not help, an employee may also consider seeking legal advice at his own expense. Employees can in any case conclude from the present judgment that threating the board is out of the question. Leaking of confidential information about the suspected abuse is also not allowed. In exceptional cases, however, it may be permitted to turn to an external institution before an internal reporting procedure has been completed. Whether this is the case, depends on the concrete facts and circumstances of the case.
Employers will be keen to avoid conflicts with whistleblowers where confidential information is leaked as much as possible. It follows from the present judgment that the employee felt that he had no place to go with his report for months and that he felt that nothing would be done with his report. It is unknown how exactly the reporting was received by the employer in this case, but a general recommendation for employers is to provide for an adequate internal reporting system.
For more information on this subject, contact your regular Loyens & Loeff advisor or Hermine Voûte.
Hermine VoûtePartner Attorney at law
P. Hermine E. Voûte, attorney at law, is chairwoman of the Employment & Benefits practice group. She has over 31 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: firstname.lastname@example.org