Recently, the Supreme Court ruled on the Whistleblower Protection Act for the first time, confirming that the employer must prove that a whistleblower’s retaliation may not be related to his report. That’s the good news. And that is indeed how it is written in the law. But how does this work in practice?
In early 2021, an employee, the later whistleblower, went to work for the IJsselland environmental service as legal advisor on supervision & enforcement/policy implementation. He started with a temporary contract. Soon dissatisfaction arose back and forth. The man filed complaints against colleagues for transgressive behavior and code of conduct violations. He also threatened to press charges. Repeatedly, the employee refused to engage in conversation with his colleagues. The supervisor questions the employee’s performance. Yet this one will get a permanent contract in early 2022.
In April 2022, the employee reports suspected wrongdoing to the Dutch Whistleblowers Authority. The issue revolved around possible (appearance of) conflicts of interest in the hiring of staff by the environment service, misrepresentation about this as well as non-compliance with procurement regulations. However, the employer does not know at that time that a report was filed and who filed it.
On July 5, 2022, the legal counsel was suspended, alleging an untenable situation. On July 6, regional newspaper De Stentor published an article about a culture of fear and tampering with rules and money at the environmental service. It also indicates that a report has been filed with the the Dutch Whistleblowers Authority. These two dates are very close together; could that be a coincidence? One could, of course, argue that the suspension occurred before the publication of the article. But since the article mentions a response from the Director of Environmental Services, he will have been asked for a response before July 6 and was most likely already aware of the article and the fact that a notification had been filed on July 5. The Environmental service did not know who filed the report with the Dutch Whistleblowers Authority. But of course, given the nature of the allegations and the prior discussions with legal counsel, it was quite likely that he was (partly) the source of the article. It has the appearance that the legal counsel was suspended immediately after the employer began to suspect that it had filed a report with the Authority. The question remains as to whether the whistleblower should have already been allowed to report the matter to journalists, if indeed he did.
On July 15, 2022, the Dutch Whistleblowers Authority contacts the Environmental Service, indicating that a report is being investigated. This does not specify who the reporter is.
By the end of 2023, the Authority’s investigation reveals that there is indeed wrongdoing. The Head of Business Office hired ZZPs from a network organization that included himself and the environmental service’s group controller. Both in turn received a commission for this from the network organization. Thus, the Head of Business Office privately received a benefit from the person they hired. According to the Authority’s investigation, these did not involve very large sums of money, but this still smacks of corruption. Moreover, the selection process did not follow the procurement procedure. The Head of Business Office and the group controller had also failed to report their potentially conflicting interest, when they should have done so according to the code of conduct. So this is clearly an abuse.
In October, there is a mediation process between the employer and the employee. The mediator issues a report, in which he concludes, among other things, that it is neither desirable nor possible for the employee to return to the Environmental Service, because the damage caused as a result of actions or procedures initiated by him is too great for that. This suggests that the Environmental Service knew that the employee made the declaration and report. The employee then submitted the report to an expert for counter-examination. It concluded that no value should be attached to the mediator’s report because the procedure followed would not be correct and the content would be contrary to general principles of research methodology.
For a mediator to write down this kind of conclusion does make us wonder how the mediation took place. And did the mediator apparently also conduct an investigation? This sounds peculiar, but perhaps there is a good explanation.
In November, the employer proposed termination of employment. The employee rejected a proposal to do so in late November.
On December 1, 2022, the Public Prosecution Service notified the Environmental Service of a report made by the legal advisor. In doing so, they also indicate that this person is the one who made the report to the Authority. In late December, the employer went to the subdistrict judge to have the employment contract terminated because of a disturbed working relationship.
The subdistrict court found that the employment relationship was indeed disturbed and that the employee was not protected from harm because it was clear that his reporting was not the reason for the request for termination. Indeed, the employee’s conduct would date back well before July 2022. On appeal, the Arnhem-Leeuwarden Court of Appeal agrees. And now so does the Supreme Court. In the ruling, the Supreme Court indicates that it must truly be proven that there is no causal connection between the notification and the dismissal. Doubt about that, then, is not enough. Like the district judge and the trial court, the Supreme Court finds that in this case there is no causal connection between the legal counsel’s whistleblower report and the Environment Service’s desire to terminate his employment. The suspension and dismissal apparently had everything to do with the employee’s prior conduct and not his report.
Yet we wonder: is that really the case? Clearly, though, labor relations were disturbed. But wouldn’t the employer have a strong suspicion that this very employee had filed a report? Isn’t it quite coincidental that the reporter’s suspension just about coincides with the time the environmental service hears that a report has been filed? The identity of the reporter may not have been known, but it was easy to guess.
It was decided not to take the case to the European Court. That’s unfortunate. Indeed, the European Commission indicated in late 2021 that an anonymous reporter is also protected from harm if their identity is later revealed, in accordance with Article 6.3 of the EU Directive. Now the reporter in this case was not anonymous; his report and his identity were initially kept confidential. But isn’t that a similar situation? Why should an anonymous reporter be protected and a reporter who reported confidentially but whose identity was guessed not be protected from harm? For the timing of notification, should not the April 2022 notification to the Authority be retained?
Now the problems between the reporter and the employer predate the report to the Dutch Whisleblowers Authority. But the reporter still received a permanent contract in early 2022. In our view, to justify the dismissal, the relationship between the reporter and the employer between the establishment of the permanent contract in early 2022 and the notification in April 2022 would have gotten out of hand. But then it is somewhat peculiar that he is not suspended until July 5.
And what did the Environment Service’s reporting procedure look like at the time? If it stated that a report can also be made to the supervisor, then that time should be taken as the time the report was filed. Perhaps that already took place before April 2022.
Would the judiciary have ruled differently if the employee had filed a report internally before July 5? Should Dutch whistleblowers perhaps be advised to report to the employer by name as soon as possible, otherwise they may not be protected? Surely this does not seem to us to be the intention of the EU directive.
Here again the fact that the EU directive has not been very well implemented in Dutch law avenges itself. For example, Article 6.3 from the EU Directive has not been incorporated into the Dutch Whistleblowers Protection Act. Unfortunately, that is not the only crucial part of the directive not incorporated into law.
Similarly, the term “follow up” is not well defined in the Whistleblower Protection Act. It is clear from the EU Directive that the independent person or persons, who follow up on the report, not only investigate (or have investigated) the veracity of the report but also provide feedback to the reporters. Dutch law states only that the employer is responsible for succession. There is no indication of who provides the feedback to the reporter. Some administrators infer that they should contact the reporter. This leap of faith is understandable from the perspective of Dutch law but is certainly not the intention of the EU directive.
In addition, the EU directive states that reporting channels must be secured such that unauthorized personnel should not have access to them. In our opinion, this means that even the IT manager should not have access to the reporting channels and one should therefore use external reporting software. Unfortunately, this part also did not end up Dutch law. According to the Department of Justice, what is stipulated in the GDPR is sufficient. But so is EU legislation. There was, of course, a reason to put this explicitly in the EU directive. And since it does appear in the EU directive, it obviously just applies in the Netherlands as well.
Still, we wonder how the Dutch Whistleblowers Authority views whistleblower dismissal. Was there disadvantage to the reporter here, resulting from his report? Can they still investigate this now that the Supreme Court has ruled on it? We are very curious as to how you view this matter and would welcome your response.
