The news about the bullying behaviour at the Dutch tv-show “De Wereld Draait Door” (DWDD) could hardly be missed in the Dutch media in the last couple of weeks. Many co-workers were aware of it, but nobody did anything to stop it. These cases can and should be handled better.
There have already been many discussions in the Dutch media about the bullying behaviour at the popular Dutch TV show “De Wereld Draait Door” (DWDD). It is the next scandal in a – by now – long series of incidents. Interestingly, this time the bystander effect is also mentioned by a number of people. Many employees witnessed or were aware of the misconduct. Yet, they did not report it because they were afraid of the consequences for themselves. An additional factor was that many employees did not have a permanent employment contract and could be dismissed at any moment. So they were afraid to lose their job. The managers who did know about the misconduct did very little to address it, probably because they were afraid of agonising a popular TV host and possibly losing him to a competitor.
In cases like these, the role of the management is always crucial. The management should actively create a safe environment and invite employees to speak up. The management should also take appropriate measures to stop any misconduct. Ethics & compliance officers and integrity managers can help creating a safe speak-up culture, by receiving and following up on reports, keeping the identity of the reporter confidential and by organizing specialized training. But some proper legal protection for the reporters would also be helpful.
This week, the House of Representatives will discuss the Dutch Whistleblower Protection Act. It will replace the House for Whistleblowers Act and stems from an EU directive, which should have been implemented by 17 December 2021 already.
The new law significantly improves the position of whistleblowers. For instance, the burden of proof is reversed. Employers will now have to prove that any detrimental measure, such as a dismissal, a transfer or a bad assessment, has no connection whatsoever with the whistleblower report. Whistleblowers no longer have to report internally first. They can also report straight to the authorities and may even go public in certain circumstances. Confidentiality clauses that do not make an exception for whistleblowing will become null and void. Organisations are thus encouraged to make internal reporting attractive and to handle the reports properly. A broader range of people are protected, such as employees of suppliers, and many employers must appoint an independent person to receive the reports and an independent person to follow up on the reports. This can be the same person. This role should not be fulfilled by the confidential adviser; this person supports and advises the (potential) reporters but is not the right person to coordinate an independent investigation.
This all sounds promising. Unfortunately, some ambiguity remains about when exactly the protection against retaliation is provided. One of the criteria is that the ‘public interest’ must be at stake. This is already the case at the moment. Depending on the interpretation of ‘public interest’, the bar can be quite high. And the term creates unclarity.
Recently, the Minister of the Interior illustrated the problem herself. In response to questions raised by MP Pieter Omtzigt, she referred to the Annual Report on the State Budget, which states that 286 reports of integrity violations were registered in 2021 and 392 in 2020. In 2018, there were as many as 815. These include reports of fraud, conflicts of interest, abuse of power and unwanted behaviour. The decline of the number of reports may mean that fewer misconduct took place. Alternatively, it could also mean that a culture of fear arose, in which people were afraid to report something.
According to the same report, in 2020 and 2021, not a single whistleblower case was submitted. Does this mean that all these hundreds of reporters of integrity violations will not be protected against retaliation? Or perhaps they have not been recognised as whistleblowers?
At the moment, it seems that the definition of ‘public interest’ has not been changed, but the interpretation may have. The minister recently indicated that when all the people at a department structurally have to work overtime without getting paid for that, she considers this to be wrongdoing where the public interest is at stake, that could be reported through the whistleblowing procedure. But if one person has to work overtime time and time again without getting paid for that, there is no wrongdoing where the public interest is at stake. Still, we would like to see that this kind of behaviour is also reported by a bystander. After all, this could be a case of bullying, harassment or discrimination. Under the current proposed law, somebody who reports a case like this one, would not be protected.
Together with Transparency International Netherlands and the labour union FNV, amongst others, we therefore propose to remove the ‘public interest’ criterium from the law. The minister fears however, that a huge number of reports will then be submitted by employees who feel they have been treated unfairly by their employer. This could be prevented by making an exception for reports that concern someone themselves and that are subject to labour law.
It is also worth noting that the draft act sometimes goes beyond the EU directive. For example, according to the directive, employers must set up written or oral reporting channels. In the Netherlands, organisations must do both. For small organisations, this is quite burdensome. However, the ministry said it wanted to promote an open and transparent culture and make the threshold for reporting as low as possible. This, in itself, sounds good to us.
But the best way to lower that threshold is to enable anonymous reporting. If you don’t know who the reporter is, you also can’t retaliate against the person. All organisations that are subject to the Dutch Anti-Money Laundering and Terrorist Financing Act (AML/TF or in the Dutch language Wwft) are already obliged to set up anonymous reporting channels. Many multinationals have also launched anonymous channels, as this is considered a good practice. Unfortunately, the minister does not want to make this mandatory, again because she fears that it could result in a huge number of reports being submitted. Judging from the experience that we have at multinational companies and organizations subject to AML/TF legislation, that fear does not seem to be justified.
In addition, effective and dissuasive sanctions have not yet been put in place against people or companies who retaliate against a reporter. Nor has it been adopted that reporting channels should be secured such that unauthorised personnel cannot access them. It should be prevented that a board member is able to instruct the IT manager to find out who the whistleblower is. On these two topics, the proposed law does not comply with the EU directive.
Furthermore, whistleblowers should still receive better legal, financial and psychosocial support. Currently, several experiments are going on at government agencies and the minister wants to wait for the results first. However, it would be good to regulate this now, now that the law is being changed anyway.
Finally, the proposal does not include sanctions for organisations that have not established a whistleblowing procedure or that have a procedure which does not comply with the legislation. Also, no supervisor has been nominated.
As a result, the current Dutch proposal does not yet comply with the EU directive and the good practices. There is still a lot of room for improvement in the protection of reporters. It is necessary; this is demonstrated time and time again.
