Whistleblowing in Belgium

Introduction

There is no specific legislation on whistleblowing although calls have been made for legislation to be introduced.

This means that if an individual wants to blow the whistle, there is no set procedure that he/she must follow and that an individual does not have specific protection.

If an employer introduces a whistleblowing procedure it must comply with general legal obligations such as those in relation to data protection and the Commission for the Protection of Privacy, which has adopted a specific recommendation on the compatibility of whistleblowing procedures with the data protection legislation.

Whistleblowing claims are not very common in Belgium.

Protection available

Although there is no specific legislation, some authors have suggested that a whistleblower could possibly seek protection on the grounds of the:

• contractual duty of mutual respect rules governing abusive dismissals (if the whistleblower is dismissed), and
• rules prohibiting bullying and harassment at the workplace (if the whistleblower is subject to detriment for having blown the whistle or for having followed a whistleblowing procedure).

Contracting out

It is possible to agree with individuals that they will not make a disclosure under a whistleblowing procedure.

It is not possible to agree with individuals that they will waive their rights under the data protection legislation.

Remedies

If an employee has suffered damage as a result of having blown the whistle, they could claim damages under the law of torts in the Civil Code. A fault, a damage and a causal link between the fault and the damage must be proven.

Whistleblowing policies/arrangements

There is no statutory requirement that an employer have a whistleblowing policy or whistleblowing arrangements.

If an employer does want to introduce a whistleblowing policy, a detailed policy is highly recommended as employees must be informed of their rights under the data protection legislation. The policy itself must comply with data protection legislation and the Commission’s recommendation.

Before introducing a whistleblowing procedure, an employer must notify the Commission, and employees collectively (by informing the works council, the health and safety committee, the trade union delegation or the employees). Employees should also be informed individually.

Practical implications

Employers may want to consider having a whistleblowing procedure and a whistleblowing hotline. Data protection legislation must, however, be considered.

Other

The Commission is the regulatory body handling data protection issues. Although it is not binding, it is recommended to follow the Commission’s recommendation which sets out the requirements in relation to data protection legislation that must be complied with when implementing a whistleblowing procedure. Non-compliance with data protection legislation may be sanctioned by administrative or criminal sanctions.

Prior notification of such processing of personal data must also be filed with the Commission.

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