Gepubliceerd op 26 oktober 2021
A female police officer who revealed the misconduct of her superior was rightly dismissed, according to a judge, while her boss was unjustly dismissed. The lawyer of the police officer called it “the death blow for whistleblowers in the police force”. Would this case be judged differently under the new Whistleblower Protection Act?
A few years ago, a police officer in The Hague, together with a colleague, blew the whistle because some of her colleagues in the ‘Schilderswijk’, a neighborhood in The Hague, called themselves ‘exterminators of Moroccans’ and used other racist talk. They also used excessive force during an arrest, after which the suspect could barely walk. A video showing that the suspect could hardly walk was then shared in a WhatsApp group. The police officers who did this were subsequently transferred to other departments of the police force.
Unfortunately, the identity of the whistleblower was leaked, after which she was bullied and pestered by her colleagues in The Hague and in the end had to be transferred to another police station. The police officers who did this were eventually given a light disciplinary punishment and have not been prosecuted further.
At her new workplace, the police officer was then confronted with undesired sexual harassment from her new boss. She decided to tell her story to the newspaper NRC Handelsblad and provided some WhatsApp messages showing the sexual harassment by her superior as evidence.
At first instance, her team leader was fired from the police force. However, he appealed against this decision. And though the judges found that the team leader had behaved “improperly and inappropriately, going beyond the boundaries of permissible behavior”, the judges found that he had been dismissed unfairly. The fact that the investigation had not been carried out “with due care” was an important reason for this decision, and his excellent police record was also taken into account.
The female police officer, who exposed the misconduct, was also dismissed. According to the judges, this was justified because her contact with the media meant that she had violated her professional oath and her secrecy obligations. The court also held the view that the police officer had contacted the media too quickly and had failed to make it plausible that she faced an emergency situation that left her no choice but to share the information with a journalist. She could, for example, have turned to even more confidential advisors within the police force than she had already done, or she could have consulted a lawyer. As a result, “the reputation of the police organization and the trust (in the police officer) had been seriously damaged”. The lawyer who assisted the police officer called the verdict “the deathblow for whistleblowers in the police force”. And “if the police had ensured a safe workplace, none of this would have happened”.
Now it is difficult to judge a case on the basis of limited information and without knowledge of all the facts and circumstances. But we do wonder how the reputation of the police is affected when people who behave badly are allowed to stay, while the whistleblower gets fired.
What has gone wrong here? Firstly, in the first case, the identity of the reporter was leaked. That contravenes the law to protect whistleblowers. In the second case, the police officer apparently reported the matter to a confidential counsellor, who also functions as the reporting channel within the police force. We think that this is incorrect; confidential counsellors should advise and support the whistleblower. They should not act as the integrity coordinator, who receives the reports and follows up on them. In our view, this role should be fulfilled by another person or department. After all, a confidential counsellor who advises and supports the reporter cannot also coordinate an independent investigation, right? In addition, we find it rather peculiar that according to the court the police agent should have approached multiple confidential counsellors with her report. Is it not sufficient to submit a report once? Does this court understand how whistleblowing works? Finally, according to the court, the internal investigation was also carried out without exercising due care. It seems that the police officer had sufficient reasons to distrust the internal reporting procedure.
Under the newly proposed Whistleblower Protection Act, whistleblowers who turn to the press are also protected. And if they have sufficient reason not to trust the internal reporting procedure, the obligation of secrecy is dropped. Does this mean that the verdict would be different under the new law?
Unfortunately, the draft law only applies if there is ‘serious wrongdoing with consequences for society at large’ or a violation of EU law. Sexual harassment and other forms of misconduct by a police chief towards a subordinate are not covered.
What is your view about this case? Do you think that the outcome is fair? We do not think so and therefore we recommend that the Whistleblower Protection Act also protects whistleblowers who report ‘misconduct’, including misconduct by the police. See also here (link to previous article). We therefore hope that the police officer will appeal against the verdict and that the court will then take the spirit of the new EU directive into account in its judgment.
