The proposal Decree includes, inter alia, the following requirements.

1. Agreements in reporting procedure about approaching reporter

The draft Decree introduces a legal obligation to lay down in the reporting procedure that, in the event a reporter reports the suspicion of wrongdoing anonymously, the officer will, as far as possible, make agreements with the reporter about the way in which the reporter wishes to be approached during the further course of the reporting procedure. It follows from the explanatory memorandum to the proposal Decree that the officer should make sufficient effort to contact the reporter. An example given here is the officer posting a general message on the physical or digital location within the organisation, to which all employees have access. Another possibility is for a third party, for example a lawyer, to report the suspicion of a wrongdoing on behalf of the reporter, leaving the reporter's identity anonymous. In that case, the communication may go through the third party.

The explanatory memorandum to the proposal Decree further show that it is recommended to include in the reporting procedure that, if the employee maintains his or her anonymity, it is possible that a report cannot ultimately be fully investigated. In that case, the reporter should be given the choice to either accept this consequence and refrain from cooperating in a further investigation, or to still disclose his or her own identity so that the investigation can be continued.

2. The officer must not also be a manager or involved in the recruitment, hiring and dismissal of employees within the organisation

The proposal Decree obliges the employer to appoint at least one officer who is not also a manager or in a position primarily involved in the recruitment, hiring and dismissal of employees within the employer's organisation. According to the draft decree, the legislator's intention with this provision was to prevent the possibility of reporting only anonymously to someone who is a manager or a human resources officer. This could otherwise be a possible reason for the employee not to report.

3. Protecting the anonymity of the reporter

The proposal Decree introduces a legal obligation for the officer to act in such a way as to protect the anonymity of the employee who makes an anonymous report on a suspicion of a wrongdoing when receiving and, where appropriate, forwarding the report. In the unlikely event that the identity of the reporter becomes known, the officer should ensure that the identity of the reporter is not further disclosed to others involved in the report and any subsequent investigation. According to the explanatory memorandum to the proposal Decree, it is recommended that the officer informs the reporter when and how his or her identity has become known.  

4. Annual written report on the number and nature of anonymous reports received

The proposal Decree obliges the officer to report in writing, at least once a year, to the highest authority of the employer as well as to the works council or the personnel representation body on the number of anonymous reports received and the nature of these reports. The report shall be sent to the employees if the employer does not have a works council or personnel representation body, and if there is no legal obligation to do so. The purpose of this provision is to provide regular information to the key bodies within an organisation on the number of anonymous reports of suspected wrongdoings and the nature of those reports.

5. Independent officer

The proposal Decree obliges the employer to guarantee the independent position of the officer, to allow the officer to perform the function independently and to ensure that the officer is given sufficient time that the function can be performed properly. The explanatory memorandum to the proposal Decree show that it is possible to combine the role of independent officer who receives anonymous reports with the role of officer who receives non-anonymous reports, which does not require additional burdens for employers.

6. Definition of independent officer

The employer may choose to have an officer other than the officer to whom the report is received follow up on the report. The requirements, as set out above, for an officer only apply to the person to whom the report is received. This means that the officer who only follows up on the report does not have to comply with the rules as stated in the proposal Decree, which means that this officer can also be a manager or can be involved in the recruitment, hiring and dismissal of employees within the organisation.

Conclusion

Concluding, the proposal Decree elaborates on the manner in which a suspicion of a wrongdoing can be reported anonymously to employers. The proposal Decree will be available for internet consultation until 14 May 2024. If the proposal Decree will be implemented, this means that employers with an internal reporting policy will have to update their policy with the requirements for receiving an anonymous report. We will keep you informed of the developments.

If you have any questions about the proposal Decree and/or its practical implementation, please let us know and we are happy to assist. The same applies to assistance in adapting your internal reporting policy.