Legal protection for whistleblowers
On 1 July 2016, the Dutch House for whistleblowers Act (the Act; Wet Huis voor klokkenluiders) has entered into force. The Act has two main purposes: it provides legal protection for whistleblowers and contributes to the solution of social wrongs.
According to the Act, every employer who employs at least fifty persons is obliged to establish an internal procedure for dealing with the reporting of a suspicion of wrongdoing (vermoeden van een misstand) within the organization. The starting point of the Act is for employees to report a suspicion of wrongdoing internally at first, in order for the organization to deal with such a suspicion itself. The Act leaves the employer a certain freedom in designing an internal procedure, as long as it meets the conditions set by the Act (such as the definition of a suspicion of wrongdoing and that the employer deals with a report confidentially if requested by the employee).
House for whistleblowers
Furthermore, the Act provides for the establishment of a House for whistleblowers (the House) which on the one hand advices employees on how to deal with a suspicion of wrongdoing and assists them in taking further steps. On the other hand, the House can conduct an investigation to a whistleblowers report on a suspicion of wrongdoing. An employee can turn to the House directly if the employer has not properly dealt with the employees report of a suspicion of wrongdoing or if it cannot be reasonably asked of an employee to report the suspicion to the employer.
Although the Act does not contain a sanction for employers in the event that they fail to design an internal procedure, it is strongly advised to design such a procedure for multiple reasons. For instance, if an employer does not provide in an internal procedure, employees might feel themselves compelled to turn to the House to report a suspicion of wrongdoing. As a consequence, an organization may find itself entangled in an investigation by the House or another regulator, instead of being able to deal with the suspicion internally and keep control. Furthermore, the House has several powers when conducting an investigation, such as the power to request for information and to inspect documents. According to the Act, an employer is obliged to fully and truly cooperate. It is important to note that, in principle, the House is sworn to secrecy regarding the information it was provided with in relation to a report of an suspicion of wrongdoing. However, the Act limits the obligation to observe secrecy in the event Dutch law requires the House to report information or if the House feels required to report information when carrying out its task arising from the Act. This means that in certain situations an external report by an employee at the House may result in sharing information with, for instance, the Dutch Public Prosecutor which may have enormous consequences for an organization.
In conclusion, it is advisable for an employer to implement an internal procedure for dealing with a report of a suspicion of wrongdoing and, when an employee makes such a report, to deal with the report and employee properly and in accordance with the Act. Furthermore, it is important for an employer to protect an employee who reported a suspicion of wrongdoing, in order to prevent the employee to turn to the House with its suspicion directly.