17 December 2021 at the latest, the European Directive for the protection of whistleblowers must be implemented by the Member States. What changes does this Directive bring? What do these changes mean for you and your organisation? Is your whistleblower policy still up to date?
Exposing wrongdoing within an organisation, or whistleblowing, is legally regulated in the House for Whistleblowers Act. This Act prescribes who may blow the whistle, how and for what purpose this may done.
All persons working for a company are entitled to protection when they report wrongdoing. This includes not only persons with an employment contract or public law appointment, but also self-employed persons, temporary workers, voluntary workers, and interns. Wrongdoing occurs when public interests are at stake.
A person reporting wrongdoing, who complies with the regulations of the Act may not be disadvantaged because of that report. This means that the reporter must first report a wrongdoing which is taking place or has taken place, internally within the organisation. The employer may then not dismiss, suspend or take any other disciplinary measures against the reporter.
If a person reporting wrongdoing claims protection from disadvantage because of a report, the burden of proof lies with the reporter. The reporter then has to demonstrate that there is a link between the report and the disadvantage.
The Directive on the protection of persons who report breaches of EU law now also regulates the protection of whistleblowers at European level. The consequence of this Directive is that the Netherlands must amend existing whistleblower legislation.
The Directive must be implemented by the Member States by 17 December 2021 at the latest. This will not be possible in time in the Netherlands. The legislative proposal to implement the Directive was submitted only on 1 June 2021 and is still being debated in the Lower House.
Firstly, the name of the House for Whistleblowers Act will change. This will become the Whistleblowers Protection Act.
The new Act extends the protection against retaliation. In addition to the aforementioned persons, any person who makes a report in a work-related context will get this protection. For example, directors, shareholders, job applicants and suppliers may also qualify for protection from retaliation after a report. This regulation also applies to persons who assist a whistleblower.
It is important that the burden of proof changes in a claim on protection from retaliation. In the event that a reporter suffers retaliation, the employer will have to demonstrate that there is no link between the retaliation and the report.
In addition to protection when a wrongdoing is reported that takes place or has taken place, the protection will also apply to reports of actual or potential breaches of EU law. Unlike in the case of wrongdoing, the protection from retaliation in the case of reports of breaches of EU law thus also applies if the breach is likely to occur. In addition, wrongdoings do not have to be reported internally first any longer. Internal reporting is also not required in the case of breaches of EU law. A reporter may choose to report externally immediately. The authority to which a wrongdoing or breach can be reported depends on the nature of the breach. Even if the wrongdoing or breach is not only reported but also made public, the reporter may be entitled to protection from retaliation. In that case, the reporter must meet a number of conditions.
Companies with at least 50 employees must have a whistleblower policy. This policy must include, among other things, the internal procedure for reporting wrongdoing. The new Act includes stricter conditions for internal whistleblower policies.
As a result of the new legislation, most companies will have to adapt their whistleblower policies. We will be happy to assist you in drawing up a policy that meets the requirements of the new legislation. Please note that the works council has the right of consent regarding the introduction or amendment of the whistleblower policy.
Do you have any questions about wrongdoings within your organisation? Or do you have any questions about the introduction or amendment of your whistleblower policy? We will be happy to advise you and can also assist you in any proceedings. You can also contact us for other employment law issues. Please contact:
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