The National Association of Confidential Advisors and the House for Whistleblowers have jointly published a brochure on the role of the confidential advisor in the reporting procedure. A nice initiative, but we have some questions.
The National Association of Confidential Advisors and the House for Whistleblowers have jointly published, each on their own websites, the brochure “The Confidential Advisor in the Reporting Procedure.”
The brochure starts strong. The Whistleblower Protection Act (Wbk) states that a reporter may consult an adviser in confidence. This can be the confidential advisor. But it may also be someone else, such as a lawyer, someone from a workers union, a colleague or a family member.
In addition, the reporting procedure should indicate which independent officer receives the report and which independent officer(s) follow up on the report. According to the brochure, the confidential advisor is not supposed to be the reporting point. However, the confidant can pass on reports to the reporting point. That seems right to us.
The EU Directive, on which the Wbk is based, is clearer in this regard. It states that an impartial person or department must be designated, who is responsible for following up on the reports. They may be the same person or department who receives the reports, and who will maintain communication with the reporter and, if necessary, request further information and provide feedback. The recitals to the guideline further state that the persons who receive and follow up on reports must be independent and have no conflicts of interest. However, since the confidant supports the reporter, the confidant is by definition not impartial and therefore not an appropriate reporting agent.
Section 2.2 of the brochure is unfortunately a little less clear. Can the confidant be an independent officer in the reporting procedure? This paragraph mainly states that the confidant should not interfere in the follow-up; that is clear. But in our opinion, the answer to the question is unequivocal: No!
For example, take a look at the guide of the Government Commissioner for Sexual Transgressive Behavior and Sexual Violence, Mariëtte Hamer. It also states that the confidant should not be the reporting point.
Unfortunately, it is not the only point on which the Dutch Whistleblower Act is less clear than the EU Directive.
See also our contribution to the EU Directive consultation process.
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