Organ­isa­tions employ­ing at least 50 employ­ees are required to have an intern­al whis­tleblower policy. As of the moment that the Whis­tleblowers Pro­tec­tion Act (Wet bes­cherm­ing klokken­lu­iders) (WPA) has (par­tially) entered into force, stricter require­ments apply with regard to that whis­tleblower policy. Most organ­isa­tions (with 50-249 employ­ees) must already com­ply with these new require­ments for some time now (i.e. as of 17 Decem­ber 2023).

Form the moment the WPA came into force, it was clear that the pos­sib­il­ity of mak­ing an anonym­ous report would be added later. In this con­text, the Decree on the anonym­ous report­ing of sus­pec­ted (the Decree) was sub­mit­ted for inter­net con­sulta­tion on 2 April 2024 (until 6 August 2024). Do you want to know what this Decree entails? Please read below!

 

Is the Decree also rel­ev­ant for inde­pend­ent con­tract­ors?

If the Decree is adop­ted, this could have import­ant con­sequences if you work with (many) inde­pend­ent con­tract­ors. Recently, we wrote a blog about the pos­sib­il­ity for organ­iz­a­tions to make the intern­al whis­tleblower policy also avail­able to inde­pend­ent con­tract­ors. In that blog you can also read why it may be a good idea to con­sider doing so. The Decree requires organ­iz­a­tions to include the pos­sib­il­ity of mak­ing an anonym­ous report in the intern­al whis­tleblower policy. If this intern­al policy is also avail­able to inde­pend­ent con­tract­ors, they can make use of this pos­sib­il­ity too.

 

To whom do you make an anonym­ous report?

The Decree requires employ­ers to appoint at least one officer to whom an anonym­ous report can be made. This is the per­son (or are the per­sons) who receives the report. This may be the same per­son as the per­son hand­ling the report, but that does not neces­sar­ily have to be the case.

The officer may not have a mana­geri­al pos­i­tion with­in the organ­isa­tion, nor can they be primar­ily involved in recruit­ing, hir­ing or fir­ing employ­ees, as this could cre­ate a bar­ri­er for the report­er to make a report. So, for example, an HR employ­ee can­not be the (only) officer to whom an anonym­ous report can be made. If an employ­er has appoin­ted more than one officer, the employ­er must ensure that at least one of those officers meets these require­ments. This means – for example – that the oth­ers may then be in the HR depart­ment.

Fur­ther­more, it is import­ant that the officer:

• should be equipped with suf­fi­cient expert­ise and exper­i­ence to prop­erly per­form the pos­i­tion as officer. For example, the officer must be able to prop­erly assess the inform­a­tion provided by the report­er, and should under­stand how and with whom that inform­a­tion can be shared, how to fol­low up on the report, have integ­rity and good com­mu­nic­a­tion skills, etc.;
• must ensure the anonym­ity of the report­er; and
• must report at least once a year to the employ­er and the works coun­cil or staff rep­res­ent­at­ive body (PVT) on the num­ber and nature of reports received. Kindly note that, if no works coun­cil or staff rep­res­ent­at­ive boy has been estab­lished, and the employ­er is not obliged to do so, the over­view must be shared with the employ­ees.

The employ­er must ensure that the officer is able to per­form the role inde­pend­ently and prop­erly and has suf­fi­cient time and sup­port­ing resources. In addi­tion, the officer’s inde­pend­ence must be ensured. The appoin­ted officer does not have to be employed by the organ­isa­tion. An extern­al per­son can also be appoin­ted.

 

How to make an anonym­ous report?

The intern­al whis­tleblower policy should include how a report can be made anonym­ously. In prin­ciple, employ­ers are free to determ­ine the report­ing meth­od for those anonym­ous reports, but the report­ing pro­ced­ure should include that (as far as pos­sible) agree­ments will be made with the anonym­ous report­er on how they want to be approached dur­ing (the con­tinu­ation of) the report­ing pro­ced­ure.

It is import­ant to real­ise that even in case of an anonym­ous report, the require­ment of send­ing a con­firm­a­tion of receipt with­in sev­en days applies. The way in which this must be done is not pre­scribed. If spe­cial soft­ware is used to make a report, send­ing this con­firm­a­tion will prob­ably not cause any prob­lems, but you can ima­gine that this might be quite dif­fi­cult in oth­er cases. If you don’t know who made the report, how will you then reach this per­son? The Decree indic­ates that even in that cases, the officer should make an effort to con­tact the report­er, for example through gen­er­al intern­al com­mu­nic­a­tion chan­nels. As an example, the explan­at­ory note to the Decree states that a mes­sage can be pos­ted on the intranet, obvi­ously in such a way that the nature and con­tent of the report remains con­fid­en­tial. If many inde­pend­ent con­tract­ors per­form work for your organ­iz­a­tion, this can be even more dif­fi­cult as inde­pend­ent con­tract­ors do not always have access to the intern­al com­mu­nic­a­tion chan­nels, such as the (full) intranet.

 

What next?

The Decree is up for inter­net con­sulta­tion until 6 August 2024. So we will have to see and wait for the reac­tions and sug­ges­tions, and of course how these might affect the cur­rent Decree. At the time of writ­ing this blog, there is par­tic­u­lar cri­ti­cism of the (require­ments for the) inde­pend­ent officer to whom the anonym­ous report can be made and the way in which the anonym­ous report must be sub­mit­ted. Responses to the Decree also show doubts about the pro­ced­ure. People ques­tion wheth­er the Decree provides suf­fi­cient safe­guards. For example, there are no spe­cif­ic require­ments for the officer, except that the officer must be com­pet­ent, may not be a man­ager and may not be involved in the recruit­ment, hir­ing or dis­missal of employ­ees. For example, the Decree does not spe­cify the inde­pend­ence or level of edu­ca­tion of the officer.

It is still pos­sible to sub­mit reac­tions to the Decree. It is there­fore not unlikely that more (crit­ic­al) reac­tions will be received.

If the Decree will be adop­ted (in this form), organ­iz­a­tions will have to adjust their intern­al report­ing pro­ced­ure accord­ingly. If the intern­al whis­tleblower policy has also been made avail­able to inde­pend­ent con­tract­ors, it is advis­able to start think­ing about how best to arrange this for this group.

 

We will of course keep you updated on fur­ther devel­op­ments. If you have any ques­tions, feel free to reach out to us!

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