Senate approves Whistleblowers Protection Act

On 24 January 2023, the Senate approved the Whistleblowers Protection Act. The new law replaces the 2016 Whistleblowers Authority Act. The new law introduces new, more protective measures towards so-called ‘whistleblowers’. Whistleblowers are (mostly) employees who make a report because they suspect wrongdoing within the organisation. With the new law, a whistleblower is also the person who reports breaches of Union (European) law. Whistleblowers will be protected by the new law. The entry into force date is not yet known.

We list the most important changes.

Expanding the circle of protected persons

The circle of protected persons against adverse fall-out will be expanded. In addition to employees and civil servants, self-employed and temporary workers, for example, as well as persons assisting the reporter and handling the internal report will also be protected.

Prohibition of prejudice

A whistleblower may not be disadvantaged during and after the handling of a report or disclosure of suspected wrongdoing. Under the new law, any form of prejudice will be prohibited. The burden of proof in the event of prejudice shifts from the reporter to the employer. Reporters who experience adverse fall-out will no longer have to prove that they have been disadvantaged as a result of the report. The employer will have to prove that the disadvantage has nothing to do with the report.

No longer obliged to report internally first

Whistleblowers no longer have to report wrongdoing internally first. They can also report it directly to competent authorities, such as the Whistleblowers Authority, the Personal Data Protection Authority or the Financial Markets Authority. These authorities must also offer protection to the whistleblower when reporting (threatened) wrongdoing.

Stricter requirements for internal reporting arrangements

Stricter requirements will apply to the internal reporting procedure, such as:

– The whistleblower must receive an acknowledgement of receipt within seven days of receiving his report;

– Within a maximum of three months after sending the confirmation of receipt, the employer must provide the reporter with information about the assessment and how the report has been or is being followed up;

– The employer must keep the identity of the reporter confidential, unless the reporter gives permission to disclose his identity;

– The scheme must provide that the employee can make the report in writing, orally and, in addition, anonymously;

– The employer must register reports in a register set up for this purpose.

Expanding the concept of wrongdoing

The definition of ‘wrongdoing’ is expanded. Reports of suspected violations of European law and violations of the employer’s internal rules, such as codes of conduct and company regulations, will also fall under the concept of malpractice. There must always be a social interest involved.

Employee participation

The works council has the right to consent to the amendment, adoption or withdrawal of a whistleblower regulation within an organisation. With the new law, the employee representation also has a right of consent for establishing the internal reporting procedure. If there is no obligation to set up a works council or employee representation, the majority of the staff must agree to the adoption of the internal reporting procedure.

Point of action for employers

The effective date of the law for large employers (at least 250 employees) has not yet been established.  However, it has been established that medium-sized employers with 50 to 249 employees have until 17 December 2023 to adapt or set up their internal reporting procedure. Employers with at least 50 employees will therefore have to adjust their internal reporting arrangements in line with the new law. We will of course be happy to help you with this.

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