On 18 February 2023, the (long-awaited) Whistleblower Protection Act (WPA) entered into force (in part).
The Whistleblower Protection Act implements the so-called European Whistleblower Directive (Directive (EU) 2019/1937 of the European Parliament and the Council of 23 October 2019 (OJ 2019, L 305)) and replaces the House of Whistleblowers Act.
What will change?
The WPA aims to better protect reporters of wrongdoing. The most salient changes of the new implementing legislation are – in brief – as follows:
- Stricter requirements/limits for internal reporting: for 50 employees or more, an internal reporting system must – in short – be in place. The concept of “employee” is limited in this context compared to previous legislation by adding a “subordination requirement” and “compensation requirement” to qualify as an “employee”. In addition, the law has a number of required components, which must be included in the internal reporting scheme. The report must be followed by a notification of receipt within seven days, with registration thereof in a register set up for that purpose. Within three months of the confirmation of receipt, the reporter must receive information from the employer about the assessment of the report and any follow-up action taken.
- Abolition of the mandatory internal reporting: direct external reporting is also permitted – subject to condition(s) – to a ‘competent authority’, such as the House for Whistleblowers, the Financial Markets Authority or the Personal Data Authority. With external reporting, the report retains its protection.
- Expansion of definition of wrongdoing.
- Extension of the circle of protected reporters: everyone who comes into contact with certain information in a work-related context is protected. In addition to (former) employees, this also includes shareholders, self-employed workers, job applicants, volunteers, suppliers, etc.
- Expansion of the prohibition of disadvantage and change in the burden of proof: previously the prohibition only concerned disadvantage in the legal position of the reporter. Under the new legislation, it is a ban on any form (including attempt and threat) of prejudice to the reporter, for example refusal to give references, bullying, intimidation and exclusion. There is also a non-exhaustive list of acts of harm included in the new legislation. The burden of proof that the reporting party’s harm is not related to the report shifts and falls on the employer. In addition, this prohibition of disadvantage can also be invoked – under conditions – in the event of disclosure (for example, in the media). Furthermore, the prohibition of disadvantage covers not only (legal) persons who assist a reporter and for internal investigators, but also family members and colleagues who are in a working relationship with the person against whom the report is directed.
- Silence clauses agreed with a reporter are null and void.
- Extension of co-determination rights: in addition to the works council (OR), the WPA also provides for a right of consent for the personnel representative body (Pvt) (article 35c and 35d WOR-new). If an employer has not set up a Works Council or a Pvt and is not obliged to do so (which can occur now that the “employee concept” of the WOR is narrower than in the WBK), the WBK stipulates that the consent of more than half of the employees is required for the adoption of the internal reporting regulation, unless the content of the regulation has already been regulated in a collective agreement
More information can be found here
When to comply?
For (non-government) employers with more than 250 employees, most of the new legislation has been in effect immediately since 18 February 2023. This includes smaller organizations offering financial services or products, working to prevent money laundering and terrorist financing, civil aviation, maritime labor and port state control, and companies working in offshore oil and gas activities.
All other (non-government) employers employing 50 -249 “employees” must comply with the new requirements as of 17 December 2023. Please bear in mind to timely involve the works council or any other personnel representative body and obtain their consent
Author: Annemeijne Zwager