On the 24th of January 2023, the Dutch Senate approved the Whistleblower Protection Act without further discussion. Then, to our surprise, on the 3rd of February, they sent a letter to the Minister of the Interior (Dutch language) with all kinds of questions in response to a report in the Volkskrant titled ‘NPO employees risk fines of thousands of Euros if they speak up about their work‘ (Dutch language). See also this article on fines in nondisclosure cases for NPO employees (Dutch language).
While we do not know what NPO (the Netherlands public broadcasting organization) employees want to report on, it is hard to separate this news from the news about possible harassment at the successful TV show ‘De Wereld Draait Door’. Pending the investigation into that case, the NPO director has temporarily resigned his duties. In addition, signals about possible unwanted behaviour at Studio Sport (Dutch language) came out recently.
The Senate, through Mr Dittrich, wonders how enforcing a confidentiality clause relates to encouraging whistleblowers to expose wrongdoings. At first glance, this question can be easily answered. As of now, whistleblowers need not care much about a confidentiality clause. Indeed, confidentiality clauses put in employment contracts from now on are null and void if no exception is made for whistleblower reports. However, silence clauses agreed before 18 February 2023 do not need to be amended.
Whistleblowers are encouraged to first report internally. After that they can also report to an external authority, if needed. They can also report directly to an external authority; it is no longer required to report internally first. Only if one has reasonable grounds to believe that the investigation is not progressing sufficiently, one may disclose the wrongdoing. In addition, this is also allowed if there may be an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage; or, in the case of external reporting, if there is a risk of retaliaton in reporting to the competent authority or if there is a low prospect that the wrongdoing is addressed effectively. These provisions naturally raise the necessary questions. To which external authority should be reported, for example?
And then there is the question of whether the report is indeed a report of wrongdoing, as defined by the law. Unfortunately, this question is not always easy to answer. This is evident from the Senate’s follow-up question: “How do victims of sexual harassment know whether the sexual harassment in question should be considered as wrongdoing that affects the public interest, in which case any confidentiality clause is null and void and, in the event of retaliation as a result of the report about that sexual harassment, there is a reversal of the burden of proof?”
Well, if this is an individual matter, then it is probably not a whistleblower report, as the public interest is not at stake. However, if there is a pattern or structural character or if the harassment is severe and extensive, then it is likely to be wrongdoing that affects the public interest. But how does an individual whistleblower know if there is a pattern? Until the pattern is established, there is probably no protection for the whistleblower. Unless it was particularly serious. And when is that the case?
Therefore, the Senate also asks whether the Minister can specify specifically which forms of sexual harassment and which forms of corruption constitute wrongdoing as defined in the Whistleblower Protection Act. And if sexual harassment is reported outside the organisation, because the victim has legitimate reasons not to trust a careful follow-up within its organisation, is not then by definition the public interest at stake and any confidentiality clause therefore null and void?
With these questions, the Senate is hitting where it hurts. One wishes they had done so before passing the law. In any case, we are curious to hear the Minister’s answer.
Incidentally, the current NPO board has already announced that the confidentiality clauses will be adjusted.
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