On July 1, 2016, the House of Whistleblowers Act went into effect. As of February 18, 2023, this law has been amended and is called the Whistleblowers Protection Act. The Whistleblowers Protection Act stems from a European Union directive (Directive (EU) 2019/1937) and thus replaces the old House of Whistleblowers Act. We list the most important changes for you.
The directive from which the Whistleblowers Protection Act stems was adopted by the European Council and the European Parliament at the end of 2019. This directive had to be transposed into national legislation by December 17, 2021 at the latest. The Netherlands failed to meet this deadline. The Whistleblowers Protection Act finally passed the House of Representatives (Tweede Kamer) only on December 20, 2022, and was approved by the Senate (Eerste Kamer) on January 24, 2023 as a hammer piece and thus passed without plenary debate.
The Whistleblowers Protection Act largely went into effect as of February 18, 2023. Some parts of the Whistleblowers Protection Act will take effect later. These include the obligation for employers to also handle reports that are anonymous. This will require further regulations.
THE MOST IMPORTANT CHANGES
We have listed the most important changes resulting from the entry into force of the Whistleblowers Protection Act below:
1. The circle of protected persons has been expanded
In addition to employees who report suspected wrongdoing, others who perform work-related activities (such as interns, self-employed workers, volunteers, (sub)contractors, suppliers and job applicants) are now also protected from being harmed. The same applies to those who assist a reporter and internal investigators of a report.
2. The definition of ‘wrongdoing’ has been expanded
Reportable wrongdoing may involve (i) a violation or risk of violation of Union law; or (ii) an act or omission in which the public interest is at stake.
3. The prohibition on harm has been expanded
Pursuant to the Whistleblowers Protection Act, any form of prejudice to the reporter is prohibited. This includes, for example, refusing to give a reference, bullying, exclusion, coercion, intimidation or the inclusion of the reporter on a blacklist.
4. Burden of proof shifts to employer
Reporters who take the position that they have been wronged because of a report of suspected wrongdoing will no longer have to prove this themselves. This burden of proof shifts to the employer. The employer must prove that the disadvantage has nothing to do with the report.
5. Direct external reporting is always possible
Reporting internally first is preferred, but a reporter can also report directly externally, for example to the House of Whistleblowers or another competent authority.
6. There are stricter requirements for internal reporting procedures
A reporter must receive confirmation of receipt within seven days of a report. Employers must also provide the reporter with information on the progress of the investigation within a maximum of three months after a report.
Large employers (with more than 250 employees) must comply with the Whistleblowers Protection Act immediately. In addition, certain employers in the areas of financial services, transportation or environment must also comply with the Whistleblowers Protection Act effective immediately, regardless of the number of employees. Employers with 50 to 249 employees must comply with the Whistleblowers Protection Act by December 17, 2023.
WANT TO KNOW MORE?
Do you have any questions about the Whistleblowers Protection Act, or would you like help drafting or adapting a whistleblower policy in accordance with this new law? We are happy to think along with you!