In response to questions from employees at the NPO, the Senate put forward questions to the Minister of the Interior about confidentiality clauses and the Whistleblowers Protection Act. A bit peculiar, as they had passed the Act just two weeks before. The minister has since replied. Has clarity now been established?
As we pointed out in our previous newsletter, the Dutch Senate passed the Whistleblower Protection Act on the 24th of January 2023. They then sent a letter to the minister on the 3rd of February asking for further clarification of the law. The reason was a report in the Volkskrant (Dutch language) titled ‘NPO employees risk thousands of euros in fines if they speak up about their work’. This letter was probably related to the misconduct surrounding Studio Sport, about which an extensive article has now appeared in the Volkskrant. See also our previous article in this newsletter.
For those reporting inappropriate behaviour at Studio Sport, it is of course good to know whether they risk a fine of thousands of euros if they blow the whistle, or whether they are protected under the Whistleblowers Protection Act (Wbk). For the Wbk to apply you need to know whether malpractice is occurring, as defined by the Wbk. Hence, the Senate has raised questions about this.
The minister begins her answer (Dutch language) by thanking the Senate for its speedy consideration and acceptance of the Whistleblowers Protection Act. After all, it significantly strengthens the position of whistleblowers. An additional advantage was that no infraction proceedings were initiated by the European Commission against the Netherlands for late transposition of the EU directive. We already suspected that the hasty adoption of the Wbk had to do with the threat of fines from Brussels.
The minister first addressed the non-disclosure clauses. Non-disclosure clauses signed as of 18 February last are void to the extent that they deprive the right to report or disclose suspected wrongdoing, as defined in the Whistleblower Protection Act. Previously agreed non-disclosure clauses are not void but may be (partially) invalid if they provide that no serious wrongdoing may be reported. That is indeed the gist of the law.
The question is then which forms of sexual harassment and which forms of corruption constitute serious wrongdoing that affects the public interest. The minister indicates that it is not possible to list these exhaustively. For each specific situation, the facts must be checked against the criteria set out in the legal definition of serious wrongdoing:
- It does not only affect personal interests
- There is a pattern or structural character or the act or omission is serious or extensive
In the case of sexual harassment, this may be the case if the situation affects the interests of multiple people. In addition, there must be a pattern or structural form of sexual harassment, or sexual harassment of such a serious nature that it affects the public interest. One should take into account the seriousness of the offence, the nature of the interests and the position of the person who is suspected of sexual harassment. The minister wants to start giving more clarity to potential reporters through education and communication, using specific examples. No examples are mentioned in the letter, so apparently we will have to wait.
Now, how can reporters know whether there is serious wrongdoing going on, that affects the public interest, which means that their confidentiality clause is void? The minister acknowledges that this is difficult for victims to assess, but that they can turn to the House of Whistleblowers for advice and information.
Well, what can the individual whistleblower do with such an answer? And will the House for Whistleblowers in specific cases have sufficient information to assess this? For example, how can the individual whistleblower or the House know if there is a pattern of sexual harassment at this employer, if only one whistleblower submits a report? In our view, this is where the Senate hit a nerve. Therefore, our advice is to simply label all forms of sexual harassment as malpractice.
In the debates in the Lower House, the Minister indicated that she wants to prevent that the Whistleblower Protection Act suddenly applies to individual labour disputes. For example, when an employee accuses his employer of harassment during dismissal proceedings. Our advice is to mention in the law that individual issues, to which labour law applies, be exempted from the Whistleblower Protection Act.
The Senate has asked a number of follow-up questions (Dutch language) on this, and on a number of other interesting issues. More on this in our next newsletters. You can subscribe here.
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Incidentally, the minister also notes that sexual harassment is prohibited and it is the employer’s responsibility to prevent and address sexual harassment in the workplace. The employer should draw up an action plan for this purpose. This is indeed the case. It seems to us that a proper reporting procedure, an investigation protocol and independent follow-up should be part of that.
