Today, the Senate approved the Whistleblower Protection Act (Wet bescherming klokkenluiders) (Wbk). This law replaces the Whistleblowers Authority Act (Wet Huis voor klokkenluiders) (Wet HvK) and has important consequences for employers. In this article, we provide an overview of the most important changes.
Background
The Wet HvK has been in effect in the Netherlands since 1 July 2016. Under this law, employers with more than 50 employees, must have an internal reporting procedure in place to allow any suspected misconduct to be reported. In this respect, anyone who reports such suspicions may receive protection against detriment. In order to improve the protection of whistleblowers and having regard to the fact that the protection of whistleblowers varies greatly amongst the EU member states, on 23 October 2019 the European Directive on the protection of persons who report breaches of Union law, was introduced (the Directive).
In relation to the implementation of the Directive into Dutch law, a bill (the Bill) was submitted to the House of Representatives on 1 June 2021. After much criticism, the initial Bill was amended on several occasions through a "Memorandum of Amendment'. On 20 December 2022, the House of Representatives adopted the Bill, including a number of amendments, and today the Senate adopted the Wbk.
Important changes
The Wbk leads to several important changes compared to the Wet HvK that further strengthen the position of a whistleblower. We have listed several major changes of the Wbk below:
Important changes
- Additional requirements internal reporting procedure
- Definition of 'wrongdoing' expanded
- Direct external reporting is now possible
- Requirements for external reporting entities
- Additional protection against detrimental actions
- Opening the internal reporting procedure to third parties
- Sanctions
Role of employee participation
On the basis of article 27 (1) (m) of the Works Councils Act (WCA), the works council (ondernemingsraad) has a right of consent regarding the amendment, adoption or withdrawal of a whistleblower scheme. What is new is that the WCA is being amended so that also the employee representation (personeelsvertegenwoordiging) has a right of consent for the establishment of an internal reporting procedure. If an employer has not set up a works council or employee representation and is not obliged to do so, the consent of more than half of the personnel will suffice. Please note that this does not apply if an employer is obliged to establish a works council (for 50 or more employees) or employee representation (for 10 to 50 employees if so requested), but no works council or employee representation has been established. In that case, the substitute consent of the majority of employees will not suffice. There are quite a few companies that are required to establish a works council, but have not done so, for example, because there is insufficient enthusiasm among the employees to take a seat on the works council. It is yet unclear how these companies can best deal with this obligation.
Entry into force
Public employers (including the central government, municipalities, provinces, water boards and public-law independent administrative bodies) must already comply with the new requirements of the Directive as of 17 December 2021. Private employers with 250 or more employees must comply with the Wbk immediately as of its entry into force on a date determined by Royal Decree (koninklijk besluit) and must therefore have amended (or established) their internal reporting procedure by then. We assume that the Wbk will enter into force in the near future. Employers with 50 to 249 employees have been granted a longer implementation period. The Wbk provides that these employers must comply with the Wbk no later than 17 December 2023. In view of the above, it is important to involve the relevant participation bodies in time.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
