On June 29 2022, Minister Bruins Slot submitted a second amended bill to parliament. At that moment, we were just about to send our previous newsletter. We strive to inform you timely and fully. Therefore, this article contains a first reaction to the amendments. We also discuss the matter of anonymous reporting and a few minor amendments to the law.
The amended proposal proposes a new, integral definition of wrongdoing. Subsequently, the rest of the text of the law mainly speaks of (suspected) wrongdoing. This makes the law easier to read.
The definition of wrongdoing
So what does this definition of wrongdoing include? Firstly, of course, a breach of EU law. This follows from the European Whistleblower Protection Directive. In addition, it also includes breaches of other legislation and violations of the internal rules of the employer. However, this must still be a breach in which the public interest is at stake.
The wording is as follows (free translation):
- A breach or threat of a breach of EU law, or
- An act or omission whereby the public interest is at stake in case of:
1°. a breach or a threat of a breach of a law or the internal rules of an employer, or
2°. A danger to public health, to the safety of persons, to the deterioration of the environment or to the proper functioning of a public service or an enterprise as a result of an improper act or omission.
So, there will also be protection for the whistleblower in case he or she reports a (threat of a) breach of national law or the internal rules of the employer. That is great and an important extension of the scope of the law, for which we have regularly pleaded. However, the public interest must still be at stake. That is a pity. And strange. We have previously argued that this term should be removed from the law.
Wrongdoing that affects the public interest or serious misconduct?
The Minister indicates that researchers and the evaluation of the House for Whistleblowers Act have not concluded that the restriction to ‘wrongdoing that affects the public interest’ should be removed. It is not entirely clear to us whether the researchers were asked this question. However, the Minister continues to find it necessary to make a distinction between wrongdoing that affects the public interest on the one hand and conflicts due to personal relationships on the other.
Now it is understandable that not every little incident is covered by the law. The classic example is the employee who, against the rules, takes a pen from the company home. As far as we are concerned, somebody does not have to report this as a whistleblower report and then be granted protection. However, much will depend on the interpretation of ‘wrongdoing that affects the public interest’. The House for Whistleblowers, the Dutch Whistleblowing Authority, has set the bar pretty high for this in recent years. The legislator could have solved this by opting for the reporting of (the risk of) ‘serious wrongdoing’ or ‘serious misconduct’.
Legal basis of internal rules
The explanatory notes to the legislation further indicate that a violation of internal rules must not only affect the public interest but that these internal rules should also have a legal basis, sus as the requirement to wear a helmet or safety shoes for health and safety purposes. Since reports of breaches of the law already fall within the scope of the Whistleblower Protection Act, we wonder what the added value is of adding breaches of internal rules. However, the Minister would also provide protection when reporting breaches of internal rules that are based on collective bargaining agreements.
The explanatory notes provide a couple examples. For example, allowing staff to work overtime without compensation is against the law and the public interest is at stake if this occurs structurally. However, there is no harm to the public interest if it happens to only one individual. That may be true, but does a whistleblower who notices and reports this not need protection? This is where we clearly have a different view. In our opinion, if one employee has to work overtime time and time again without compensation while others do not, we think that this is something that should be reported and that the reporter deserves to be protected. The Minister apparently doesn’t think this is such a bad thing?
Individual labour disputes are not covered by the law
The Minister also states that, by holding on to wrongdoing that affects the public interest, reports on individual labour disputes do not fall under the scope of the Whistleblower Protection Act. We do not see why individual labour disputes may not be reported through the whistleblowing channels if they involve serious misconduct, like a serious breach of the law or a serious breach of the internal rules. The individual employee who is affected by this could appeal to labour law. But why should an accidental bystander not be allowed to report this? On the contrary, we think that organisations should welcome such reports, as they make it easier to safeguard the integrity of the organisation.
One almost wonders whether this has something to do with the Ministry’s role as an employer. Also because the Minister expresses the fear that in the event of a labour dispute, legal advisers may advise their clients to submit a whistleblowing report, thereby protecting them from harm. This is an argument that we have heard frequently from employers, but have in practice rarely, if ever, come across, even in organisations whose policy it is to never retaliate for making any kind of report for whatever reason. The thing is that whistleblowers are only protected against retaliation that relates to the report that they have submitted. A good employer should simply be able to demonstrate that the dismissal, demotion, transfer or a bad evaluation of an employee has nothing to do with a whistleblower report, but with the (dis)functioning of the employee.
We are curious to see how Parliament will assess this.
So a breach of the internal rules must therefore, according to the Minister, concern internal rules that have a legal basis, such as the requirement to wear a helmet or safety shoes. Or rules that result from a collective bargaining agreement. Open standards that only contain a recommendation, such as social media guidelines, would not be covered, according to the explanatory notes. We find this part of the explanatory notes rather strange. After all, a recommendation or a guideline is not a rule and we do not consider a violation of a recommendation to be a violation of an internal rule.
But what if the code of conduct of the employer states that employees are expected to act with integrity? This is an open standard. Suppose, however, that some employees are not acting with integrity, while their behaviour is not prohibited by law. If a whistleblower reports this, then this whistleblower will not be protected. Surely that cannot be the intention of the Whistleblower Protection Act?
As far as we are concerned, there should be protection for whistleblowers when they report serious misconduct, instead of when they report wrongdoing that affects the public interest. And internal rules don’t have to be based on legislation or collective bargaining agreements for having protection as a whistleblower.
Next, the Minister also discusses the obligation to enable anonymous reporting. She has not included such an obligation in the bill.
The Minister expresses a number of concerns in respect of anonymous reporting. Here we see all the objections that we hear frequently from employers. For example, the concern that an anonymous report is more difficult to investigate and that anonymity may influence the nature of the whistleblowing and the reliability of the report. Fear for malicious reports often plays a role here. However, we have rarely, if ever, come across malicious reports in our practice. And if they do occur, a good investigation should be able to see through that. And with a good whistleblower reporting platform, communication with an anonymous reporter is possible. That is why many employers ultimately choose to offer the option to report anonymously, as it lowers the threshold for reporting. And these employers want to receive as many reports as possible. Offering anonymity is generally regarded a best practice. It is a pity that the largest employer in The Netherlands, the Dutch central government, does not recognise this yet.
With regard to communication via special software, the Minister reports that she has made enquiries at a number of competent authorities. According to them, this software provides a false sense of security, because a reporter sometimes slips up and unintentionally discloses his or her identity. That does happen sometimes. But in that case, it is the reporter’s own fault. That is no reason to not offer the option of anonymity. Moreover, the law stipulates that an independent person or department must ensure that the identity of the reporter is kept confidential. Data that can be traced back to a particular reporter must therefore be filtered out by the coordinator in the follow-up process.
The Minister herself also indicates that there is always the possibility of making an anonymous report, even without a legal obligation to investigate such a report.
That is indeed the case. We have also received reports from email addresses such as firstname.lastname@example.org. So why would you not offer anonymous reporting? And sometimes an anonymous reporter gains so much trust in the organisation during the course of the investigation that he or she discloses his or her identity after all.
We therefore advise organisations to also enable anonymous reporting and to investigate anonymous reports.
Protection for integrity coordinators and investigators
Furthermore, the act not only protects the people who support or advise the reporter, such as the confidential adviser or other adviser, but also the integrity coordinators and the investigators. Since these persons should be independent anyway, no retaliatory measures should be taken. Still, it is a useful addition; it strengthens the position of the integrity coordinators and the investigators.
In addition, some minor legislative changes are proposed, such as an amendment to the Works Councils Act. For example, if the company does not have a Works Council, but does have another form or representation of the staff, then this staff representation must consent with the whistleblowing procedure, just like the Works Councils have to provide their consent as well.
In addition, non-disclosure clauses are now only null and void insofar as they relate to disclosures made by whistleblowers and not to other kinds of disclosures. This also makes sense.
Also, it is now clearly but not exhaustively defined what is meant by ‘retaliation’ against a whistleblower. This was also advocated by parliamentarian Mr. Omtzigt in his memorandum on the bill.
A (potential) reporter may also have him/herself represented by a third party when contacting the House for Whistleblowers. So anonymous reporting to the House via a lawyer or confidential adviser is enabled.
Finally, the prevention task of the House for Whistleblowers is now incorporated into the law. The explanatory memorandum even refers to the guides and the Integrity Assessment (IntegriteitsWijzer) developed by the House, which are highly recommended!
At first sight, these smaller adjustments make sense to us.
On July 7th 2022, the Parliamentary Committee of the Interior decided in the procedural meeting that a written consultation will be held on the Minister’s response to the Memorandum of parliamentarian Mr. Omtzigt. The deadline for the responses is July 22nd.
In addition, the Committee has decided that it first wants to receive a quick advice from the Council of State on the proposed amendments. It is expected that the bill will be discussed further in September at the earliest. At the same time, there is, of course, the risk of being fined by the European Commission for surpassing the deadline for the implementation of the European Directive. However, parliament considers it more important to put a good law in place. Our estimate is that the new legislation will enter into force by the end of 2022 or the beginning of 2023.
Would you like to know more about the new legislation? Then follow our course on the Dutch Whistleblower Protection Act.