Senate of the Netherlands accepts Whistleblower Protection Act as a hammer piece

Background

Already on 7 December 2019, the Whistleblowing Directive entered into force. This directive aims to provide a minimum level of protection to reporters of (suspected) wrongdoing – also described in this post as "whistleblowers" – when they report breaches of European law. Until the adoption of the directive, the protection of whistleblowers within the European Union was very fragmented, also because only a subset of member states offered any form of protection for whistleblowers at all in national legislation.

Current Whistleblowers Authority Act in a nutshell

In the Netherlands, since 1 July 2016, the Whistleblowers Authority Act aims to provide protection for whistleblowers. In short, this law requires employers employing 50 people or more to have an internal reporting procedure for reporting (suspected) wrongdoing. Furthermore, a so-called prohibition of disadvantage applies. The Whistleblowers Authority Act also created the Dutch Whistleblowers Authority (hereafter "the Authority"). The Authority supports, informs and advises whistleblowers on their legal protection and position or if they report wrongdoing. The Authority also investigates and reports on (suspected) wrongdoing.

Amendments under the Whistleblower Protection Act (“WPA”)

The WPA – in addition to the title of the law – amends the Whistleblowers Authority Act in material respects. Summarised point by point, the main changes concern:

• Broader interpretation of "disadvantage": currently, "disadvantage" only covers a disadvantage in legal status, e.g. suspension, dismissal, demotion, deprivation of promotion, reduction in salary, etc. The WPA will protect any form of disadvantage, including discrimination, intimidation, harassment, exclusion, defamation or slander. Furthermore, "threats of" or "attempts to" disadvantage will be brought under the scope of the disadvantage prohibition. In addition, the prohibition will no longer only apply to "reports", but under conditions also to "disclosure" of (suspected) wrongdoing (e.g. to the media).

• Broader circle of protected persons: with the entry into force of the WPA, in addition to "employees" and "civil servants", self-employed persons, volunteers, trainees, job applicants, contractors, shareholders, suppliers, etc. will also be protected. The same applies to persons assisting a reporter (e.g. a counsellor) and third parties involved (e.g. a colleague or family member).

• Expansion of reporting types: the prohibition of disadvantage currently extends to (suspicions of) work-related wrongdoing involving the public interest. Under the WPA, reports on a work-related violation of European law as well as on a work-related violation of a statutory regulation or internal rules of an employer are also covered by the prohibition of disadvantage. This no longer applies only to completed violations, but also to threatened violations.

• Shifting the burden of proof: to successfully invoke the prohibition of disadvantage, a reporter under the Whistleblowers Authority Act has to prove that he has reported, that he has been disadvantaged and that this disadvantage is the result of the report. Under the WPA, a reporter only has to prove that he has reported or disclosed on reasonable grounds and that he has been disadvantaged. A presumption will then apply that the disadvantage is the consequence of the report or disclosure. Thus, the burden of proof of the causal link between a report and the disadvantage shifts from the reporter to an employer.

• Indemnification from legal proceedings: after the WPA has entered into force, reporters (and persons assisting them as well as third parties involved) are indemnified from liability in legal proceedings for e.g. breach of a duty of confidentiality, copyright infringement or disclosure of trade secrets. This indemnification is not absolute. For example, the reporter must have had reasonable grounds that the report was necessary to disclose wrongdoing and that the information reported was correct. The person taking legal action against a reporter must prove that the challenged acts were not necessary to report or disclose wrongdoing.

• Mandatory internal reporting lapses: under the WPA, the obligation in principle to report internally first lapses and external reports can be made directly, e.g. to the Authority or another competent authority.

• Stricter requirements internal reporting procedure: the WPA tightens the requirements of the internal reporting procedure. The reporter must receive confirmation of receipt of the report within seven days as well as information on the assessment of the report within a reasonable period of no more than three months. Employers will also be obliged to register reports of wrongdoing internally and will have to provide in the possibility to internally submit oral reports.