In a previous blog, we reported on the European Directive for the protection of persons who report breaches of Union law (the “Whistleblower Directive”), which sets the minimum standards for protecting people who report breaches of Union law.
The legislative bill converting (or implementing) the Whistleblower Directive into national Dutch law was submitted to the Lower House of the Dutch parliament on 1 June 2021. Because of the impasse in the formation, it is unlikely that the deadline of 17 December 2021, set by the EU, will be met. But this date retains its relevance, as European Directives acquire direct legal effect if Member States do not proceed with implementation in time and correctly.
Whistleblower Directive: what’s worth mentioning?
The Whistleblower Directive has a broader scope of application than the Dutch Whistleblowers Authority Act (Wet Huis voor klokkenluiders); under the Directive, it’s not just employees and civil servants who are protected, but anyone who has come across information in a ‘work-related context’. This might include former employees, job applicants or interns, as well as volunteers, shareholders and the self-employed.
But the material scope of the Whistleblower Directive does have some limits; there still has to be a breach of Union law. That said, the EU is encouraging its Member States to extend this scope of application when they implement their national legislation. For the time being, there are no proposals to do this in the Netherlands.
Under the Whistleblower Directive, it is no longer obligatory to report an abuse internally first. While this (prior) internal reporting is still a preferred option, the reporting person can also therefore make his or her report via an external channel, and can also do this anonymously. The reporting person should have his or her report acknowledged within seven days after submitting it.
If appropriate steps are not taken inside three months after an internal and/or external report, there is an option for making a public disclosure. If there is a threat or harm to the public interest , or if external reporting is not realistically possible, then such a public disclosure can even be made immediately. Finally, there is a reversal of the burden of proof, meaning that the employer will have to demonstrate that there is no breach of EU law.
There should be no retaliation, or threats of such or even attempted retaliation, if someone makes a report or a public disclosure and is correct in doing so. Examples of retaliation might include intimidation, suspension or dismissal, negative assessments or references and the termination of an employment contract or non-continuation of a temporary employment contract. If that does happen, there will be sanctions and the reporting person will be entitled to full compensation.
All things considered, whistleblowers will enjoy greater protection from 17 December 2021, at least in relation to reporting breaches of Union law.
The clock keeps on ticking
Whether the implementation deadline is achieved or not, the direct effect of this new European standard means that a large proportion of the business sector will be facing new obligations. Companies with over 250 employees will have to abide by the Whistleblower Directive from 17 December 2021. Companies with 50 to 250 employees will have two years more to comply, or a shorter period if that is what the Dutch legislature sets. Also, the Whistleblower Directive applies in full to all financial institutions, civil aviation, shipping, port State control and offshore oil and gas companies, irrespective of the number of employees involved.
Companies should take a close look at their internal (parallel) whistleblower schemes and either implement or adjust them before the deadline. If a company has a works council, the scheme should be submitted to it in good time for approval.