Back in late 2021, we wrote about the impending Whistleblower Protection Act (the Act), which aims to further protect whistleblowers who report wrongdoing. On Feb. 18, 2023, the Act went into partial effect. The new rules apply to almost all financial companies. What are the main concerns?
At the time of writing, the full Act has not yet entered into force. Provisions dealing with anonymous reporting to an employer and the enforcement and sanctioning powers are not yet in effect. This is because further regulations have yet to be issued, and an implementation and enforcement test has yet to be conducted regarding the sanctioning duties and powers.
In addition, work is already underway on another bill to improve the position of whistleblowers. This follows the evaluation of the House for Whistleblowers Act and an initiative note by Mr. Omtzigt. In the note, Omtzigt argues that whistleblower protection falls short in a number of areas. Therefore, he makes 15 proposals to expand the Act. The proposals concern, for example, the definition of the public interest or certain additional legal obligations.
All other provisions have been in force since Feb. 18, 2023.
The Act states that employers with at least 50 employees must have an internal procedure for reporting suspected wrongdoing. (Almost) all small financial enterprises with less than 50 employees* are also covered by the Act.
What is covered by wrongdoing under the Act? It must involve a (danger of) violation of Union law or an act/ negligence in which the public interest is at stake. This is the case of:
1) a violation of a legal or internal regulation; or
2) danger to public health, persons, environment or the functioning of public service or enterprise.
Private companies with 50-249 employees still do not have to comply with the Whistleblower Protection Act until December 17, 2023. Small financial companies* have already had to comply with the Act since Feb. 18, 2023.
In some cases, staff consent is required for the reporting procedure. If an organization is not required to establish a works council or employee representation, the reporting procedure must be approved by more than half of the employees. Employees can also enforce in the district court that the employer must have a reporting procedure.
Almost all small financial enterprises are covered by the Act
Employees, investigators, or legal entities assisting a reporter may not be harmed by making a report. Detriment includes dismissal, transfer and reduction in pay. It also includes refusal to provide a reference, denial of promotional opportunities and threats of disadvantage. Unlike before, the burden of proof regarding disadvantage as a result of a report lies with the employer. The employer must prove that the action adverse to the employee was not the result of the report made.
Previously, only employees who reported suspected wrongdoing were protected. Under the Act, the prohibition of disadvantage applies to a larger group of people and in more cases. A reporter can be an employee, civil servant, or other persons performing activities for an employer such as self-employed persons, interns, volunteers, job applicants, shareholders or suppliers. People who assist a reporter, such as a confidential advisor or union representative, are also now protected. This includes colleagues or family members who are related to a reporter and may be aggrieved.
Finally, under the Act, it is possible to report directly externally. Designated inspectorates and regulators, such as the AFM, DNB and the AP, must adapt their reporting channels. Previously, these were intended only for reports of Union law.
Employees thus no longer have to distinguish between violation of Union law and wrongdoing.
For a full picture of the changes, please refer to the Whistleblower Protection Act.
Projective Group is happy to help you with the interpretation and implementation of new legislation, such as the Whistleblower Protection Act. For example, we can help you with drafting a whistleblower regulation, setting up an internal procedure for reports of suspected abuse, or setting up a whistleblower register.
*It concerns the following financial enterprises: banks, investment firms, managers of UCITS and AIFs, (professional) pension funds) payment institutions, crypto service providers, mortgage providers, financial service providers that advise or mediate in mortgage credit, life insurers, premium pension institutions, non-life insurers and issuers.