Published on 26 oktober 2021
We at the Integrity Coordinator are quite enthusiastic about the EU directive to protect whistle-blowers. In recent years, many shady cases and serious misconduct have been brought to light by whistleblowers, after which measures could be taken to prevent worse. And to prevent it from happening again. It is therefore important that whistleblowers feel free to express their concerns without fear of retaliation. However, we also have five suggestions to improve the law.
The proposed Whistleblower Protection Act is much better than the version that was submitted for consultation last year. The Dutch parliament still has a number of wishes, and so do we. These are as follows:
1. Extend the scope of the legislation to include ‘misconduct’.
For the average whistleblower, it is difficult to judge whether there is ‘serious wrongdoing that affects society at large’ going on or a ‘breach of EU law’. The current draft Dutch law stipulates that these terms must be defined in the whistleblowing procedure. We anticipate that this will result in a lengthy legal text, which the average whistleblower will find difficult to understand. This can be made a lot easier. We propose to simply use the term ‘misconduct’. This would then include breaches of applicable law, both EU and national law, but also serious abuses such as discrimination, threats, harassment and the like. The legislation adopted by Denmark can serve as an example here. And why should someone who reports sexual harassment not be protected?
2. Provide the House for Whistleblowers more people, resources and authorities
Employees are encouraged to first submit a report through the internal reporting channel of the organization. However, nobody checks that organizations have a proper reporting procedure that meets the requirements of the law. We think there should be a role for the House for Whistleblowers here. Furthermore, the coordinating, advisory and mediating tasks of the House can be expanded. The House has for example requested to obtain the authority to impose a “stand-still” on organizations (see previous article/link), after which the House can mediate between a whistleblower and the organization. This seems like a good idea. However, it would mean that the House needs more resources. Moreover, it would be good if the House could reveal the identity of the whistleblower, if he/she/they agree to that, so lessons can be learned from individual cases.
3. A coordinating/advisory role of the House to assist whistleblowers who want to report to the authorities.
Under the new legislation, whistleblowers may also report directly to the authorities. The current draft law already mentions eight authorities that whistleblowers can reported to, and indicates that more authorities will follow. For a whistleblower it can be difficult to select the right authority to go to, especially if a report is made in a panic. There is a risk that whistleblowers are sent from one authority to the other, which will lead to a lot of frustration. Moreover, all authorities must be mentioned in the internal reporting procedure of an organization, which will make these procedures unnecessarily long and complicated. It is much simpler to refer the whistleblower to the House for Whistleblowers, after which the House ensures that the report is followed up by the correct authority.
4. Better (financial) support of whistleblowers by the government
For the financial support of whistleblowers, the Ministry refers to the system of free legal aid for low income families and to a pilot for a fund that has been promised before but still doesn’t exist. However, the current legal aid system is not adequate; there are cases where whistleblowers have spent more than EUR 50.000 on legal costs in order to obtain their rights in court. Most people cannot afford to invest that kind of money in legal proceedings. In addition, it can take many, many years before whistleblowers are compensated financially. In the meantime, it is often difficult to find other work. All of this also generates a high psychosocial burden on the person. The current bill does not offer any solutions for this. This must be improved.
5. Grant confidential counsellors and integrity coordinators privilege
The EU directive suggests as an option that Member States grant privilege to the conversations between whistleblowers and their advisors (trusted persons) and the integrity coordinators (the recipients of the reports), so that reporters can truly seek advice or file a report in a confidential way. This will increase the trust in the reporting system. It must also be prevented that the secret services start tapping telephone conversations to the House for Whistleblowers or integrity coordinators. Recent experiences have demonstrated that this is not a hypothetical scenario.
By adopting these five suggestions, we will make it a lot easier for whistleblowers to raise their issues, we will raise the trust in the procedures and we will also be able to better protect whistleblowers.