In a letter to the Senate dated July 3, 2023, the Interior Minister answers some questions raised by the House.
The first question is about combining the role of confidant with the role of independent whistleblower hotline. We still sometimes encounter this situation in practice. Curiously, the minister sees no tension in combining the role of confidant, who advises, supports and sometimes represents the reporter, and the role of independent recipient and conduit of a report. The minister sees the fiduciary as independent because the fiduciary is not accountable to the employer.
This position puzzles us. How can someone, who advises, supports and represents one of the parties, be above the parties at the same time? Organizations such as the House of Whistleblowers and the National Association of Confidential Advisors also believe that the confidant should not also be the reporting agency.
The minister also ignores the fact that many organizations have designated internal confidants, who do have to be accountable to the employer.
However, the minister does indicate that the confidant cannot follow up on the report. That seems right to us.
An independent person should also be appointed for succession. This may be the same independent person who receives the report, or it may be different people. Follow-up here means verifying the accuracy of the reporter’s allegations and addressing the wrongdoing if necessary. According to the European directive, the independent person or department following up on the report must also provide feedback to the reporter. In doing so, the identity of the reporter should remain confidential, unless the reporter consents to disclosure of their identity.
There was also a question to the minister about this. Indeed, in practice, we do encounter procedures that stipulate that management maintain communication with the whistleblower. However, according to the European directive, this should be done by an independent party. Dutch law does not include this provision of the directive.
The minister does not find it objectionable if management handles communication with the whistleblower, as long as provision is also made for communication and feedback through an independent officer. In doing so, the minister indicates that management should not contact the reporter directly without his or her consent. We would put this in very stark terms. Until the reporter gives explicit permission for this, management should not communicate directly with the reporter and should do so through the independent person following up. In any case, the reporter must consent to the disclosure of his or her identity. It will greatly undermine confidence in the reporting process if a reporter suddenly receives a phone call from the director about the report that has been filed.
The Senate also noticed that a phrase about the security of internal reporting channels had not been included in the Dutch law. According to the minister, this is because the obligation to secure internal reporting channels is already covered by the AVG. In our view, what the minister is overlooking here is that the AVG is already in place in the EU anyway. Nonetheless, it was felt necessary at the EU level to explicitly state that the reporting channels and the registry should be secured such that only authorized employees have access to whistleblower reports. Apparently, they felt it was necessary to make this explicit because the AVG does not provide sufficient guarantees for this. Consider, for example, the case at Barclays, where the CEO ordered his employees to find out the identity of the whistleblower. Employees who refuse to do so are in a much stronger position with the European Directive provision than with the AVG provisions. This case also proves that this is certainly not a hypothetical scenario.
When asked whether sexual harassment and corruption are not by definition abuses, the minister reiterated her earlier position that it depends on the circumstances. It depends on its severity and extent or its structural nature. If the sexual harassment affects purely personal interests, then it is not malpractice, according to the minister. However, it must be taken into account whether and in what manner the employer acted after learning of this. If an employer does not provide a safe working environment, then sexual harassment against just one person can also constitute wrongdoing.
The latter is new, but in practice does not make it any easier for a potential reporter to assess whether or not they are legally protected from retaliation after filing a report or after being revealed in the press. In doing so, the minister indicates that such open standards are more common and also allow for changes in societal attitudes. Potential reporters can seek advice on this from the House of Whistleblowers.
The minister also indicates in this letter that the Dutch Labor Inspectorate and the Inspectorate for the Environment and Transport will soon be designated as competent authorities for external reports, and at a later stage possibly also the Dutch Food and Consumer Product Safety Authority.
While we are not very excited about the minister’s response so far, we do welcome her feedback regarding the organizations with less than 50 employees, which according to the EU directive and Dutch law are not allowed to share resources to receive and follow up on reports, while organizations with 50-250 employees are. Further consultations with the European Commission are taking place on this. Depending on the outcome, an amendment to the Wbk will be considered. We hope this will be the case soon, because it is impossible to explain why a financial advisor, broker or car salesman with 60 employees is allowed to share resources and the same organization with 10 employees is not. By the way, outsourcing to an outside party like The Integrity Coordinator is always allowed.
