By Dennis G. Veldhuizen, CLINT Lawyers & Mediators
On 1 March 2016, the House for Whistleblowers Act (Wet Huis voor klokkenluiders) (the Act) was adopted by the Dutch senate. The Act will enter into effect on 1 July 2016.
The Act a) provides for legal protection to whistleblowers and b) creates an authoritative body, the House for Whistleblowers (the House). The House advises on and initiates investigation into wrongdoing within organisations.
An overview of the Act's important elements:
• Employers who employ at least 50 employees are obliged to adopt a whistleblowers’ regulation. Such regulation must address at least (i) the manner in which an internal notification is dealt with; (ii) when a suspicion of wrongdoing has arisen; (iii) which responsible person must be notified of the wrongdoing; (iv) the confidential treatment of a notification; and (v) that the employee has the right to consult an advisor on a confidential basis;
• The employer must provide information about the circumstances under which a suspicion of wrongdoing may be disclosed externally;
• The definition of employee in the Act is broad. The term ’employee’ includes civil servants or any persons performing work other than under an employment contract, such as self-employed persons, trainees or volunteers.
The whistleblowers’ regulation must be approved by the Works Council prior to its implementation.
House for Whistleblowers
The new Act arranges for the establishment of a ‘House for Whistleblowers’. The House is split into a department of advice and an investigation department.
The advice department has the task to inform employees about the steps they can take when they suspect wrongdoing.
The investigation department can lodge an inquiry into the suspicion of wrongdoing. Furthermore, this department can initiate an investigation into the manner in which the employer handled the notification by an employee. Once the inquiry has been completed, the department draws up a report in which it makes recommendations.
The investigation department is authorised to request information and to demand inspection of business documents. The employer is obliged to cooperate with these requests. Cooperation may only be refused if the interests of national security are at stake or in case of a violation of professional secrecy or statutory regulations.
The employee can request the House to conduct an investigation. The House will not institute an investigation if (i) the request is obviously unfounded; (ii) the public interest or the seriousness of the wrongdoing is insufficient or (iii) or the suspicion of the wrongdoing is primarily subject to the assessment of another authority.
An employee who notifies a suspicion of wrongdoing may not be retaliated against by the employer. The employee can successfully invoke legal protection if three requirements are met:
• the suspicion of wrongdoing should be based on reasonable grounds;
• the notification is made in good faith; and
• the employee has acted with all due care both in procedural and material terms.
This protection relates to dismissal and salary reduction. The burden of proof in respect of the employer´s retaliation lies with the employee.