On 1 March 2016, the Dutch Senate adopted the “House for Whistleblowers” Act (Wet Huis voor Klokkenluiders) (the Act). The Act:
- creates a framework for internal company whistleblowing;
- provides for the formation of a new authoritative body, the “House for Whistleblowers” (the House) as an external investigatory body, and
- offers protection to employees who decide to whistleblow.
The Act defines ’employees’ widely and is therefore applicable to employees, self-employed persons, trainees and volunteers in both the public and private sectors. It is expected that the Act will enter into force on 1 July 2016. An overview of the most relevant aspects of the Act is set out below and our infographic also provides a handy quick guide.
What is a “suspected matter of abuse”?
According to the Act, there is a “suspicion of abuse” if a perceived abuse is of structural nature and puts the general or public interest at stake. The suspicion must be based on reasonable grounds.
Mandatory internal whistleblowing procedure
An employer which employs 50 employees or more is obliged to adopt an internal whistleblowing procedure.
The internal whistleblowing procedure must set out:
- how the internal notification is dealt with;
- the definition of a suspected matter of abuse;
- which officers the suspicion of abuse can be reported to;
- that upon the request of the employee the notification will be treated confidentially; and
- that the whistleblower must be given the opportunity to take confidential advice.
The employer must also inform the employees in writing about when the internal procedure applies, under which circumstances the suspicion of abuse may be disclosed externally and about the protections they enjoy.
As a result of the Act, the Works Council Act will be amended so that a Works Council’s prior consent is required in connection with adopting an internal whistleblowing procedure.
The House for Whistleblowers
The Act provides for the establishment of the “House for Whistleblowers”.
The House is divided into an advisory department and an investigation department. The task of the advisory department is to provide general information about whistleblowing and to inform and advise employees about the steps to be taken in case of a suspicion of abuse and, if needed, refer them to another competent authority.
The investigation department can, amongst others, conduct an investigation into the suspected matter of abuse. This investigation will only be conducted if the suspicion of abuse is seriously sufficient and founded. During the investigation the House is authorised to request information and may demand an inspection of the company, in order to investigate the suspicion of abuse. The employer is obliged to cooperate with the House and to provide all requested information or answer questions in that respective matter. Only in very limited circumstances, such as national security issues and professional secrecy, does the employer have the option to refuse to cooperate with the investigation of the House. Once the investigation has been completed, the House will issue a report and provide, if any, recommendations to the employer.
The Act’s guiding principle is that the employee has to report the suspicion of abuse internally first. When it appears that the suspected matter of abuse is reported internally, but did not lead to a proper handling, the employee can go to the House with the request to conduct an investigation. The employee also has the opportunity to contact the House directly if it is not reasonable to ask him to report the suspicion of abuse internally.
The employee who has “whistleblown” is legally protected against, inter alia, dismissal and transfer. The employer is not allowed to take any action that may prejudice the employee for properly reporting, in good faith, a suspicion of abuse during or after the handling of the report by the employer or another competent authority, such as the House.
Osborne Clarke’s Employment team is pleased to assist you with drafting and implementing a tailor-made internal whistleblowers procedure in accordance with these new legal requirements.