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On 24 January 2023, the Senate approved the Whistleblowers Protection Act, which replaces the 2016 Whistleblowers Authority Act. On 18 February the Act partially entered into force.
The new law introduces new, more protective measures towards so-called ‘whistleblowers’. Whistleblowers are (mostly) employees who make a report because they suspect wrongdoing within the organisation. Under the new law, a whistleblower is also a person who reports breaches of Union (European) law. The date that the new law will enter into force is not yet known.
Here are the most important changes in the new Whistleblowers Protection Act.
Expanding the circle of protected persons
The circle of persons who are protected against adverse fall-out will be expanded. In addition to employees and civil servants, protection will be extended to self-employed and temporary workers, for example, as well as persons who assist the reporter and handle the internal report.
Prohibition of retaliation
A whistleblower may not be disadvantaged during and after the handling of a report or disclosure of suspected wrongdoing. Under the new law, any form of adverse action will be prohibited, and the burden of proof will be shifted from the reporter to the employer. Whistleblowers who experience adverse action will no longer have to prove that they have been disadvantaged as a result of the report. Instead, the employer will have to prove that the disadvantage has nothing to do with the report.
No longer obliged to report internally first
Whistleblowers no longer have to report wrongdoing internally first. They have the option to report it directly to competent authorities, such as the Whistleblowers Authority, the Personal Data Protection Authority or the Financial Markets Authority. These authorities must also offer protection to the whistleblower when reporting wrongdoing or threatened wrongdoing.
Stricter requirements for internal reporting arrangements
Stricter requirements will apply to the employer’s internal reporting procedure, such as:
- The whistleblower must receive an acknowledgement of receipt within seven days after the report is received.
- Within a maximum of three months after sending the confirmation of receipt, the employer must provide the reporter with information about the assessment and how the report has been or is being followed up.
- The employer must keep the identity of the reporter confidential, unless the reporter gives permission to disclose his or her identity.
- The scheme must provide that the employee can make the report in writing or orally, and that it can be made anonymously.
- The employer must register reports in a register set up for this purpose.
Expanding the concept of wrongdoing
The definition of ‘wrongdoing’ is expanded in the new law. Reports of suspected violations of European law and violations of the employer’s internal rules, such as codes of conduct and company regulations, will also fall under the concept of wrongdoing. There must always be a social interest involved.
Employee participation
The works council has the right to consent to the adoption, amendment or withdrawal of a whistleblower regulation within an organisation. With the new law, the employee representatives also have a right of consent for establishing the internal reporting procedure. If there is no obligation to set up a works council or employee representative body, the majority of the staff must agree to the adoption of the internal reporting procedure.
Parts of the act will enter into effect at a later date.
The option of anonymous reporting to the employer and potential sanctions by the investigatory agency (the ‘House of Whistleblowers’) will come into effect later.
Point of action for employers
As of 18 February the law applies large employers (at least 250 employees) has been established that medium-sized employers with 50 to 249 employees have until 17 December 2023 to adapt or set up their internal reporting procedure. Large employers therefore must from now on comply with the law. Employers with at least 50 employees will have to adjust their internal reporting arrangements in line with the new law.
