Whistleblowing in the Netherlands

Introduction

As per 01 July 2016, the “Law House for Whistleblowers” (the Whistleblowing Act) entered into force. The purpose of the Whistleblowing Act is to protect whistleblowers and contribute to combating social abuses by, amongst others, introducing a new special independent administrative body called the “House for Whistleblowers”.

Who is protected?

The Whistleblowing Act does ensure the protection of the whistleblower, by determining that the (former) employee and (former) non-employees (eg contractors, interns, volunteers, etc.), who acted properly and in good faith by reporting a misconduct, cannot be disadvantaged in their legal position (eg the grant of dismissal, the premature termination of or failure to extend a temporary employment contract, transfer, the imposition of a disciplinary measure, denying a pay rise, refusing leave applications, etc).

Which disclosures are covered?

The Whistleblowing Act determines that an employee is entitled to disclose any suspicion of abuse, based on reasonable grounds, which takes place within the company or another company and impacts public interest (eg breach of law, threat to public health, safety or environment and/or a danger for the public service or a company).

Procedure for making disclosure

The Whistleblowing Act determines that the House for Whistleblowers consists of an advice department and an investigation department. The advice department supports the employee to undertake the necessary steps when a misconduct is suspected. By submitting an application to the investigation department, the employee can report the misconduct or request to start an investigation with respect to the behaviour of the employer in relation to the notification of the misconduct by the employee. However, the investigation will, in principle, not be initiated if the employee has not attempted to bring the matter to the employer’s attention first.

Payment

There are no rules on whether or not an individual can receive payment in relation to a disclosure.

Protection available

The Whistleblowing Act provides that every undertaking employing 50 or more people on a regular basis is required to establish a whistleblowing procedure. The employees acting properly and in good faith by reporting a misconduct, are subject to the provisions on protection and therefore cannot be disadvantaged in their legal position. Employees employed by smaller companies, without the presence of a whistleblower procedure, are always entitled to notify a supervisor, inspectorate or the House for Whistleblowers. These employees are also subject to the provisions of protection and cannot be disadvantaged in their legal position.

Contracting out

It is not possible to agree with individuals that they will not make a protected disclosure.

Remedies

The Whistleblowing Act does not contain a sanction mechanism. Non-compliance of decisions made by the House for Whistleblowers is therefore impossible. However, it is possible to object and appeal against such a decision, the final investigation report shall be made public and this investigation report can be used in criminal proceedings or for intelligence purposes.

Whistleblowing policies/arrangements

The Whistleblowing Act provides that every undertaking employing 50 or more people on a regular basis is required to establish a whistleblowing procedure. This procedure must at least determine the following conditions:

• the manner in which the employer will have to deal with internal notifications of misconduct by the employees
• when a misconduct is to be suspected (ie the definition of suspicion of abuse)
• to whom the misconduct must be notified internally (i.e. a company officer)
• the obligation to treat the notification in a confidential way, if so requested by the employee
• the possibility for the employee to consult an adviser in confidence when a misconduct is suspected
• the situations in which a suspicion of abuse can be notified externally, and
• the legal protection of a (potential) whistleblower.

The works council will have a right of consent regarding adoption, amendment or withdrawal of an internal whistleblower’s scheme.

Practical implications

The Whistleblowing Act obligates the employer to make the whistleblowing procedure available to employees. Furthermore, the employer must inform the employees when there is a possibility to report the misconduct externally and inform the employee about his or her legal protection.

Further details on whistleblowing in the Netherlands is available here.

Our International Employment Issues summary provides a high level overview of key employment issues including whistleblowing, across multiple jurisdictions.