On 24 January 2023, the Senate adopted the Whistleblower Protection Act (‘Wet bescherming klokkenluiders’). The Act amends the current whistleblowing legislation and implements EU Directive 2019/1973. The Act entered partially into force on 18 February 2023. The Act aims to give whistleblowers better protection against retaliation. The Act particularly affects organisations with 50 or more employees. Below you will find an overview of the main provisions and changes:

• The definition of ‘misconduct’ will be broadened. Whistleblowers will not only be protected in case of suspicions of misconduct, but also in case of reports on (a risk of) violation of European Union Law.
• Whistleblowers can directly report externally (outside their own organisation) to a competent authority. It is therefore no longer a requirement to report internally (within their own organisation) first.
• Public disclosure, e.g. through the press, will be possible under circumstances and the whistleblower could also enjoy protection.
• The scope of who qualifies as a protected whistleblowers has been broadened. Not only employees, but anyone who – in the work-related context – faces (suspected) misconduct or a violation of European Union Law. For example: volunteers, trainees, self-employed workers, job applicants, shareholders, third parties or advisers.
• The Act lists what constitutes a retaliation. For example: dismissal, demotion, harassment, bullying or transfer. The list is not limitative.
• The requirements for internal reporting procedures have been tightened by, among other things, setting deadlines for the follow-up of a report. For example, the employer must send a confirmation of receipt of the report within seven days after receipt and the employer must provide information on the assessment of report and follow-up thereof within a reasonable period (maximum three months).
• Under the Act, in case of retaliation measures the burden to prove that these retaliation measures are not related to a report of the whistleblower will lies with the employer.
• Clauses which prevent anyone from making a whistleblowing report are null and void under the new legislation.
• The Dutch Whistleblowing Authority “Huis voor Klokkenluiders” will have the authority to impose administrative sanctions if;
  • an employer with at least 50 employees does not have a reporting scheme;
  • an employer does not make information available to employees about its reporting scheme;
  • an employer does not follow recommendations from the Dutch Whistleblowing Authority; and/or
  • a whistleblower is retaliated against.

Depending on the nature of the violation, a remedial sanction or punitive sanction (a fine of which the amount is not yet known) may be imposed.

We recommend employers to assess whether the current reporting scheme and reporting structure are in line with the new whistleblowing legislation. We would be happy to review this with you.