The consultation document for anonymous reporting was published in early April. You can still respond. Naturally, The Integrity Coordinator participated in the consultation.
On April 2, 2024, the Ministry of the Interior published the draft General Order in Council (AMvB) “Anonymous reporting to the employer of suspected wrongdoing,” as well as an explanatory memorandum. The deadline to respond has since been extended three times and now stands at the end of August. Naturally, we responded to the consultation.
The Integrity Coordinator strongly supports the provision of anonymous reporting channels. The main reason for not reporting is often fear of retaliation. But if an employer does not know who reported, she cannot take action against that person. Therefore, offering the option to report anonymously lowers the barrier to reporting. We know from the literature and from our own experience that a substantial number of reports are filed by anonymous reporters. Probably a large number of these reports would not be filed if anonymous reporting channels were not offered. And then it becomes less likely that potential abuses can be detected and addressed early on.
At the same time, it is also our experience that anonymous reports are more difficult to investigate. Especially if there is no communication between the reporter and the person handling the report after the report is made. Therefore, it helps greatly if there is an opportunity to have a conversation with anonymous reporters so that additional information or clarification can be requested. But also to indicate that investigative opportunities are more limited if adversarial hearings cannot take place. Incidentally, it is our experience that some anonymous reporters gain such confidence in the procedure during the reporting and investigation process that they still decide to reveal their identity.
Thus, communication with the anonymous reporter is crucial for proper and complete follow-up on the report. The importance of regular communication is also evident, for example, in this report from Utrecht University. According to the Whistleblower Protection Act, the reporter should in any case receive an acknowledgment of receipt and feedback regarding their report. The easiest way to do this is through specialized software.
NRC published an opinion article on anonymous reporting in May 2024. According to the author, anonymous reports of unwanted behavior often lead to a panic response from management. We believe this is not necessary at all. Crucial here is the role of the independent person who receives and follows up on reports. It should guide management on such issues, investigate the matter carefully and confidentially (or have it investigated), and manage the reporter’s expectations. That as little publicity as possible is given to the report is also in the interest of the accused(s), who of course have rights as well. If the report cannot be proven, then these individuals suffer as little harm as possible.
Moreover, according to the EU Directive, reporting channels should be secured anyway in a way that protects the confidentiality of the identity of the reporter and any third parties named in the report. Unauthorized personnel should not have access to this data. Unfortunately, this provision was not adopted in the Whistleblower Protection Act, but it is of course valid.
If reports are submitted digitally through the organization’s website, the IP address can often be used to find out who submitted the report. If the report is submitted via an anonymous email address, whether created specifically for this purpose or not, this can usually be traced as well. If only because of the provider of the email addresses. Moreover, the organization’s IT manager can then often still access the report, whether or not at the direction of a senior executive. An important additional advantage of working with specialized software is that the organization then immediately has a secure central register of all reports, which is also a legal requirement. This then further helps with mandatory periodic reporting.
According to The Integrity Coordinator, the only way to report anonymously analogously in practice is verbally through an independent internal Ethics & Compliance Officer/Integrity Manager or through an (external) person. The independence of this internal Ethics & Compliance Officer/Integrity Manager must then be properly guaranteed. For example, through an independence statute and multiple reporting lines. This must be more than a paper exercise; it must be credible to employees. To further ensure independence, this person should preferably not hold any other position within the organization. For smaller organizations, this is often not a viable option. It is best for them to outsource this role to an outside official. In addition, anonymous reports could still be submitted through an external confidential advisor or an external lawyer, who would then pass the report on to the hotline.
In itself, a Data Protection Officer or Internal Auditor could also play such a role. However, the Data Protection Officer is then going to process – sometimes sensitive – personal data himself, which does not fit well with his role as internal supervisor of the processing of personal data. And the Internal Auditor would no longer be able to properly audit the whistleblower procedure if he is actively involved in it. Therefore, these positions often forgo this role.
An employed lawyer could also fill this role. But will it be trusted by employees, if an employee may face this attorney in a lawsuit? A better option, which we also encounter in our practice, is the independent Quality Manager in a production environment, who has the authority to shut down the processes if the product does not meet the requirements. Quality managers are often also familiar with grievance procedures, which is tangentially related to handling whistleblower reports.
However, as indicated in the AMvB, the independent internal or external officer should have received sufficient training to properly perform the task. We agree with that. This person fulfills a crucial role and in doing so should have the necessary knowledge of the Whistleblower Protection Act and other relevant legislation. The complexity of this function is sometimes underestimated. See also this article in the Journal of Business Ethics by Smaili, Vandekerckhove and Arroyo Pardo, which highlights the importance of the independence of the role, makes a case for strengthening it and indicates that the complexity of the role is often underestimated.
The House has indicated that the use of the open-ended standards regarding the requirements for officers may result in an anonymous reporting procedure with insufficient safeguards. We too believe that this can be a problem for smaller organizations where the function is internally invested. Indeed, in a small organization where reports rarely occur, it is difficult to meet the requirement that the officer be “sufficiently experienced. This lack of experience can lead to a risk to both the position of the reporter and the position of the officer. Again, this then argues in favor of outsourcing this role.
Given the social importance of this issue, the impact that the reports and the subjects of the reports (can) have on the lives of those involved but also on the proper functioning or even survival of the employer, from our point of view more guidance should be given regarding the interpretation of the role of the officer.
In addition, to truly ensure anonymity in analogous reports, this officer should be granted a right of privilege in legal proceedings. In our opinion, by the way, this should also apply to the officer(s) who receive and follow up on reports and to confidential advisors, in order to truly ensure the confidentiality of those reports and advice.
We do welcome the passage in the draft Order in Council indicating that for anonymous reporting, at least one officer shall be appointed who is not also employed in a managerial position, or a position primarily involved in recruiting, hiring and firing employees within the employer’s organization. This shows that it is not the intention that management and the P&O department should be allowed (the only ones) to perform this role.
We would like to see a clear framework outlined for the organizations that includes the requirements for but also the safeguards for these officers. Indeed, these officers must be able to speak freely for the activities they perform within this function and not (be able to) be pressured regarding their own position.
In addition to this, the officer must also be able to gain sufficient knowledge. Accredited training should be developed for this purpose, in which (future) officers can be trained uniformly and a standard of knowledge, and thus safeguards for reporters, can be put in place.
Finally, we advocate the introduction of a generic seal of approval for reporting software.
By the way, with the recent growth of this sector, supply has become significantly cheaper, so the burden-raising effect is not so bad. This could be further reduced if industry and umbrella organizations were to offer joint facilities to small organizations. The Integrity Coordinator is currently setting up such a joint facility with an industry association; more on this soon.
It is a mystery to us why the deadline for consultation on the AMvB has been postponed three times. Perhaps because there were not that many responses? Shouldn’t more be done on publicity? In fact, this consultation period is a lot longer than the consultation for the entire Whistleblower Protection Act, which was only open for a few weeks, in the middle of the summer vacation.
As far as we are concerned, employers are required to set up anonymous reporting channels as soon as possible. The forerunners have had them for years. It has been known for a year and a half that this is coming. Therefore, the end of 2024 seems a good time to us, giving employers a few more months to set things up.
The Integrity Coordinator BV is an external, independent coordinator of whistleblower procedures. If you are interested in our services, please contact us.
Want to know more about relevant legislation? Then take our Whistleblower Protection Act course in practice. We also offer the course in-house and in English.
Keep up to date with all developments? Then subscribe to our newsletter.
