New Whistleblowers Act adopted

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In March 2016, the Dutch Senate adopted the House for Whistleblowers Act (Wet Huis voor klokkenluiders) which is expected to enter into force on 1 July 2016.

Background

The House for Whistleblowers Act introduces legal protection for whistleblowers (those who inform on an entity or individual they suspect to be involved in unlawful activity) and provides for the formation of a new authoritative body, the House for Whistleblowers (‘the House’), which is to advise on and conduct the enquiry into the suspected abuses.  

The Act is applicable to employees and self-employed persons in both the public and the private sectors.

An overview of the most important aspects of the Act is set out below.

Mandatory whistleblowers regulation

As a rule, employers who have 50 or more employees will need to adopt a policy on whistleblowing.

This policy must be approved by the Works Council and contain a number of mandatory elements such as:

• The manner in which the internal notification will be dealt with when there is a suspicion of abuse.
• Which officer must be notified of the abuse.
• That upon request, the employer will treat the notification as confidential.
• That the employee is given the opportunity to consult an advisor confidentially.

The employer must also provide information about the circumstances under which a suspicion of an abuse may be disclosed externally.

House for Whistleblowers

The House is divided into an Advisory department and an Enquiries department.  These departments are kept strictly separate from each other.  

The Advisory department has the task of informing employees of the steps they can take in the case of suspicion of abuse and to refer them to, for example, other (supervisory) bodies.  The Enquiries department can, upon request of an employee or in its own official capacity, institute an enquiry into the suspicion of abuse.  In addition, the Enquiries department can conduct an enquiry into the manner in which the employer has behaved towards the employee following a notification of a suspicion of abuse.  Once the enquiry has been completed, the Enquiries department will draw up a report in which it offers recommendations, if any, to the employer.  The report may be disclosed to the public.

The Enquiries department is authorised to request information and to demand the inspection of business documents.  The employer (as well as its employees, witnesses and the notifying person) is obliged to co-operate with the enquiry and is also obliged to appear for questioning.  Co-operation may only be refused if it requires information or documents to be provided that could be in conflict with the interests of national security, or entail a violation of professional secrecy or statutory regulations.  It can also be refused if the person himself or their relatives could be exposed to the danger of a criminal sentence.

Procedure

A suspicion of abuse must firstly be reported internally to the designated officer.  Only once there is doubt that this has not been dealt with properly, or in circumstances where the informant cannot first be asked to report the suspicion of abuse to the employer, can an employee turn to the House and request an enquiry.

In addition, the House (as well as the employer) will not be compelled to institute an enquiry if the request is obviously unfounded, the public interest in the enquiry or the seriousness of the abuse is insufficient, or the suspicion of the abuse is primarily subject to the assessment of another authority (such as the Public Prosecutions Department or a supervisory body).

Legal protection

Employees who report a suspicion of abuse (to the employer, the House, or to another competent body) may not be prejudiced or adversely affected, in their legal position, on account of the notification.  This protection applies during and after making the notification.  Acts of adverse treatment include, amongst others, dismissal, transfer, the refusal of a request for a transfer, the withholding of a pay rise or the refusal of leave.

In order to successfully invoke legal protection, the notification must satisfy three requirements:

1. There must be a suspicion of abuse based on reasonable grounds.
2. The notification must be made ‘in good faith’ and in a ‘fit and proper’ form.
3. The employee must have acted with all due care both in the procedural and in the substantive sense.

For the time being, the prohibition of prejudice applies only to persons who are employed on the basis of an employment agreement or appointment as civil servant, although the law has a broader scope of application (including self-employed persons and trainees).  The Senate has requested the government to amend the Act on this point.

What should your business do?

Employers with 50 or more employees need to start creating a whistleblowers’ policy and communicating this to their employees and their Works Councils to facilitate adoption of these processes from July 2016.  

Amongst other services, Loyens & Loeff can assist you in:

• Drawing up a tailor-made whistleblowers’ policy which complies with the legislative requirements; and
• Implementing the whistleblowers regulation in your organisation. 

Further information

For more information, please contact Hermine Voûte or Klaas Wiersma on +31 20 578 54 31, Loyens & Loeff Netherlands.

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