Do you already have an adequate whistleblower policy for your staff?

On July 1, 2016, the House of Whistleblowers Act (“HvK Act”) entered into force. This law aims to improve the conditions for reporting social wrongdoing within organizations by enabling investigations into wrongdoing and better protecting reporters of wrongdoing.

House of Whistleblowers

To achieve this goal, a House for Whistleblowers (hereinafter “the House”) was established. The House is divided into an Advice Department and an Investigation Department. An employee may request information, advice and support from the Advice Department in the event of suspected wrongdoing. To the Investigation Department, the employee may submit a request for an investigation into suspected wrongdoing or the manner in which the employer has acted towards the employee in response to an (internal) report of suspected wrongdoing.

N.B. The access of reporters to the House is not limited to employees with an employment contract. For example, civil servants (subject to some statutory exceptions), self-employed persons, volunteers and interns can also report wrongdoing.

Suspicion of wrongdoing

What is to be understood by a “suspicion of wrongdoing” is regulated by law. The investigation task of the House is thus limited to serious social abuses that constitute a violation of a statutory provision or pose a threat to safety, public health, the environment, or the proper functioning of the public service or an enterprise as a result of improper conduct or failure to act.

Mandatory whistleblower policy

Public or private employers who generally employ at least 50 people are required under the HvK Act to adopt an adequate internal whistleblower policy. This internal whistleblower regulation must be approved by the works council. This internal whistleblower regulation must in any case lay down:

• How the internal report is handled;
• When abuse is suspected (legal definition);
• To which designated officer or officers the suspected wrongdoing may be reported;
• the employer’s obligation, if requested by the employee, to treat the report as confidential; and
• That the employee has the opportunity to consult a consultant in confidence about suspected wrongdoing.

In addition, the employer is obliged to provide a copy of the whistleblower policy in writing or electronically to everyone who works for it. In doing so, the employer must also provide them with information about the employee’s legal protection when reporting suspected wrongdoing and the circumstances under which suspected wrongdoing can be reported outside the organization.

Prohibition of prejudice (Article 7:658c of the Civil Code)

Whistleblowers do not have to fear dismissal (anymore). The employer may not disadvantage the employee as a result of correctly reporting suspected wrongdoing (Article 7:658c of the Civil Code). The employee must have made the report in good faith and properly. Legal protection for civil servants is regulated in Article 125quinquies paragraph 3 Civil Servants Act.

Procedure

The basic principle of the Whistleblowers Act is that organizations are expected to first take responsibility themselves for serious social wrongdoing. A suspicion of wrongdoing should therefore always be reported internally first. The employee can only go to the House after the suspicion has not been dealt with properly by the organization. This is only different if the employee cannot reasonably be asked to report suspected wrongdoing to the employer.

If the investigation department declares the request to investigate admissible, then a fact-finding investigation may take place. The employer is obliged to cooperate in this investigation. Cooperation can only be refused if it involves information and documents whose disclosure would be contrary to the interests of national security or would involve a breach of professional secrecy or legal regulations. Cooperation may also be refused if a person would thereby expose himself or one of his immediate family members to the danger of a criminal conviction. In such a case, the Investigation Department will determine whether the refusal is justified.

Upon completion of the investigation, the investigation department will prepare a report. This report may contain recommendations to the employer.

The investigation department then gives the employer and the reporting party the opportunity to comment in writing on the report. If the comments give cause to do so, the Investigation Department may adjust the report. If the comments do not lead to adjustment, the Investigation Department states the reasons in its report. The final report is made public by the Investigation Department.