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DUTCH WHISTLEBLOWER PROTECTION ACT INTO EFFECT ON FEBRUARY 18TH, 2023: WHAT WILL CHANGE FOR EMPLOYERS? 24-02-2023

The Dutch Whistleblower Protection Act, that replaces the former Dutch Whistleblowers Authority Act, strengthens the protection of whistleblowers and has important implications for employers. For most parts the law has even direct effect for employers with 249 employees or more. Employers with 50 to 249 employees are subject to a transition period until the17th of December 2023 to comply with the law. Therefore, employers for employers who have not updated their internal reporting procedures yet, must come into action. We have listed the most important changes for you.

The Dutch Whistleblower Protection Act is the implementation of the European Whistleblower Directive (Directive EU 2019/1937). This directive aims to better protect the whistleblowers against adverse consequences when reporting within the organization or company they work for. The Dutch government should have transposed the directive into law by December 17th of 2021 at the latest. That happened through the Dutch Whistleblower Protection Act albeit far too late. This apparently has urged the Dutch government to determine that the law must have immediate effect.   

Most important changes of the Dutch Whistleblower Protection Act

Below are the main changes of the Dutch Whistleblower Protection Act. For information about this act (in Dutch), please visit:  wetbeschermingklokkenluiders.nl.

Broader scope of a wrongdoing
Under the Dutch Whistleblower Protection Act, a wrongdoing is defined as an (imminent) violation of Union law (EU law) or an act or omission in which the public interest is at stake. This also includes the (imminent) violation of internal rules of an employer that contain a concrete obligation and are based on a statutory regulation, for example, the non-compliance with safety instructions based on the Dutch Working Condition Act. According to the Dutch Whistleblower Protection Act, the public interest is at stake if the act or omission does not exclusively affect personal interests (no individual labor conflict) and there is either a pattern or structural character or the act or omission is serious or extensive in its nature.  

Obligation of internal reporting procedure
Employers with at least 50 employees are obliged to have an internal reporting procedure. This also includes subordinates who perform paid work other than on the basis of an employment contract. This means that, for example, volunteers and interns who receive compensation must be included in determining whether an internal reporting procedure is mandatory. Please note that for some employers, the internal reporting procedure is mandatory regardless of the number of employees, even those with fewer than 50. These are employers active in areas such as financial services, products and markets, and the prevention of money laundering and terrorist financing.

Stricter requirements internal reporting procedure
The internal reporting procedure must meet a number of (minimum) requirements and lay down, among other things:

- how verbal and written reports can be made and to which independent officer(s); 
- how to report anonymously;
- that a confirmation of receipt of the report is sent within seven days and that information is provided within three months on the follow-up to the report.

Duty to register
Employers must register reports of a wrongdoing in a register set up for this purpose. The data on a report must be destroyed when there is no longer a need to keep the data.

Direct external reporting
It is not obligatory to report internally first. A suspected wrongdoing can be reported directly to the House for Whistleblowers or a specifically authorized external reporting entity, such as the Dutch Data Protection Authority. However, it is preferable to report internally first in order to prevent escalation and to be able to remedy possible wrongdoing directly at the source.

Extended employee participation
In addition to the works council, staff representation also has the right to consent when it comes to the adoption, modification or withdrawal of the internal reporting procedure. If an employer does not have a works council or staff representation and is not obliged to do so, the consent of more than half of the number of employees is required to establish the internal reporting procedure, unless the internal reporting procedure is regulated by collective bargaining agreement. 

Broader scope whisteblower protection

A reporter, who has made a report in accordance with the law, may not be disadvantaged as a result. The Dutch Whistleblower Protection Act broadens the protection against adverse consequences. Actions that do not directly affect the legal position of the reporter, but which have (indirect) adverse consequences, are regarded as disadvantage in the Dutch Whistleblower Protection Act. Examples are intimidation, harassment and exclusion. Furthermore, involved third parties of the reporter, such as colleagues and family members, are also protected. The burden of proof that there is no detriment as a result of the report lies with the employer.

Prohibition on non-disclosure agreements

An employer may not prohibit a reporter from making a report or disclosing information. A clause requiring a protected reporter to remain silent is null and void.

Change in tasks and competences House for Whistleblowers

The investigation department of the House for Whistleblowers is the competent authority to impose sanctions on employers in the form of a fine or order under penalty, as to situations wherein an internal reporting procedure does not comply with the Dutch Whistleblower Protection Act. However, the introduction of the sanctions regime has been postponed and is yet to be worked out in further statutory regulations. In addition to the knowledge and prevention task as now provided by law, it is possible to request an anonymous investigation into suspected wrongdoing from the House of Whistleblowers.   

Transitional law

The Dutch Whistleblower Protection Act has immediate effect for employers with 249 employees or more, except for the procedure on anonymous reporting to the employer and the sanctioning powers of the House for Whistleblowers for which further statutory regulations are needed. Employers with 50 to 249 employees have time until December 17, 2023 at the latest. Public sector employers were already required to comply with the requirements of the Whistleblower Directive as of December 17, 2021. 

Time for action!

Employers who have not changed their internal reporting procedure yet, will have to take immediate action in due cooperation with their works council or staff representation in order to have an internal reporting procedure that is compliant with the Dutch Whistleblower Protection Act. If you have any questions about the Dutch Whistleblower Protection Act or need advice on drafting your internal reporting procedure, please contact us: info@vanbladeladvocaten.nl

Floris Meinardi en Hanneke Klinckhamers

24-02-2023DUTCH WHISTLEBLOWER PROTECTION ACT INTO EFFECT ON FEBRUARY 18TH, 2023: WHAT WILL CHANGE FOR EMPLOYERS?

The Dutch Whistleblower Protection Act, that replaces the former Dutch Whistleblowers Authority Act, strengthens the protection of whistleblowers and has important implications for employers. For most parts the law has even direct effect for employers with 249 employees or more. Employers with 50 to 249 employees are subject to a transition period until the17th of December 2023 to comply with the law. Therefore, employers for employers who have not updated their internal reporting procedures yet, must come into action. We have listed the most important changes for you.

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11-07-2022Labor market plans government

On 5 July 2022, Minister Van Gennip (SZW) set out the government's plans for a future-proof labor market, including a (large) number of important plans in the field of employment law. These plans will be elaborated in bills at the beginning of 2023. In broad terms they are summarized in this blog.

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14-01-2022What will change in 2022 in employment law?

We have listed the most important (upcoming) legislative changes for you.

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11-01-2022Full transition payment for partial continuation of employment contract

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

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11-11-2021What can an employer do against statements of employees on social media?

These days, it is common for employees to make negative statements about their employer on social media or to express themselves in a way that is contrary to the nature of the employer’s business or company. Can the employer undertake anything against such negative statements? Yes, they can. Statements on social media are regularly a subject of dispute in court proceedings. Below I will briefly discuss two recent judgments where the employer had requested termination of employment as a result of statements on Facebook.

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05-11-2021Dismissal due to regular sickness absence often unsuccessful

Article 7:669 paragraph 3 sub c of the Dutch Civil Code lists the grounds that an employer can submit to the UWV or the subdistrict court judge to terminate the employment contract. One of these grounds is “regularly unable to perform the stipulated work as a result of illness or defects of the employee with unacceptable consequences for the business operations…”.

On September 3, 2021, the District Court of The Hague ruled in a case in which the employer based the request to terminate the employment contract on this ground. The ruling shows why a dismissal on this ground often has no chance.

What was going on?

The employee has been working as a car technician at a car dealership with several branches in the Netherlands since 2013. He was employed at a local facility and was part of a team of five employees working in the workshop. In 2017 he had called in sick 4x (104 hours in total), in 2018 8x (173 hours in total), in 2019 23x (468 hours in total) and until July 10, 2020 13x (400 hours in total). The employer had requested an expert opinion from UWV and it followed from that opinion that UWV was of the opinion that there was frequent absenteeism and that this situation was expected to last longer than 26 weeks.

What did the court rule?

The court first establishes that there is frequent absenteeism within the meaning of article 7:669 paragraph 3 sub c BW. The follow-up question is whether this absenteeism leads to unacceptable consequences for the employer's business operations. According to the court, that is not the case. The employer had stated that customers would be dissatisfied with the workshop activities of the branch, but could not substantiate this, according to the court. In addition, the court considers that a company of a size such as that of this employer (with several branches in the region and throughout the Netherlands) can in principle be expected to take care of absenteeism company-wide. The fact that it is not possible within its organization to provide replacement from another location, because there is a large group with all kinds of different car brands and a mechanic who works for one car brand at one location is not as easy as a mechanic can work for the other. According to the court, a different car brand at a different location has not become plausible. The employer was also unable to demonstrate that there was a (serious) financial disadvantage. The court therefore rejected the request for dismissal.

Conclusion

This court decision once again makes clear that – certainly for larger employers – it will not be easy in the Netherlands to dismiss an employee on the basis of frequent absenteeism. Proof of the high level of absenteeism due to illness is often not the problem, but proof of the unacceptable consequences for the employer's business operations is often an unviable route.

If you have any questions about absenteeism and dismissal, please do not hesitate to contact one of the specialists at Van Bladel Advocaten via (+31) 030-2203111 or info@vanbladeladvocaten.nl

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07-07-2021Full transition payment for partial continuation of employment contract

In 2018, the Supreme Court ruled (in the so-called 'Kolom judgment') that an employee may be entitled to a partial transition payment in the event of partial termination of the employment contract. But what happens to the right to a transition payment if an employment contract is not officially “terminated” and the parties only implicitly make an agreement that fewer hours will be worked? This question recently has been considered by the court of Central Netherlands (judgment 30 April 2021 Central Netherlands District Court).

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29-10-2020Can an employer require from his employees to wear a face mask?

The Dutch government urgently advises to wear a face mask in public indoor spaces. There is no legal obligation (yet) to wear a face mask, but many employers are considering to introduce a face mask obligation into the workplace. What about from an employment law perspective?

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29-10-2020What employers need to know about working from home

As a result of the coronavirus, a large part of the employees has been working from home for more than six months. Now that the number of infections is increasing again, it seems that this will last for a longer period. This blog covers a number of employment law aspects of long-term work from home, such as health and safety rules, the employee’s freedom of choice with regard to working from home, the monitoring of the work by the employer and the reimbursement of (additional) costs. Finally, attention is paid to the phenomenon of ‘home working arrangement’, because we notice that many employers consider to introduce such arrangement.

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11-08-2020Holiday and corona: what about the right to pay?

The holidays have started. What about wages when an employee goes on vacation to an area with a yellow, orange or red travel advice?

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06-07-2020Does the employee have a right to working from home in connection with Covid-19?

Many companies let their employees work from home as much as possible in recent weeks in connection with the corona crisis. Employees are slowly returning to the office now that the virus seems to be under control. Companies will have to ensure that work in the office can be carried out in a safe manner and must therefore take measures to prevent the spread of the virus at work as much as possible. Suppose the employee does not like to return to the office. Can he or she refuse to go back to the office, given the applicability of Dutch employment law? In a case that was brought before the Gelderland District Court, the judge ruled on June 16, 2020 that this was not allowed.

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18-05-2020Remarkable Supreme Court decision: Employers be alert to your employee's request to change employment

This so-called Victoria ruling of the Supreme Court of 21 February 2020 can have far-reaching consequences for employers who are confronted with a request from their employee to change the employment contract to work fewer hours (based on the Flexible Working Act) or another change proposal that they must reasonably accept as a good employer. Such a request can, under certain conditions, lead to a partial transition payment. Employers must be prepared for such a request to be made in termination proceedings, so that the employee will remain employed if the request is honored by a judge, even with a full dismissal ground. The Supreme Court thus strengthens the position of the employee.

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08-05-2020Change NOW: application for individual operating company under conditions possible

On 1 May 2020, the next change to the NOW was announced and finalized. The group provision has been relaxed, in that operating companies can now also apply for NOW separately if the group's loss of turnover is less than 20%.

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09-04-2020Amendments to the Temporary Emergency Measure Bridging for Work Retention Regulation (‘NOW’)

The NOW regulation, which was announced on March 31, has already changed in a few areas. This mainly concerns an extra test when submitting a dismissal application for business reasons during the NOW period and a change in the way in which the fine that applies is calculated. In this blog we inform you about the changes.

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31-03-2020Publication details of Temporary Emergency Measure Bridging for Work Retention regulation (“NOW”)

Today, 31 March 2020, the Dutch government has published the details of the Temporary Emergency Measure Bridging for Work Retention regulation (“NOW”). The NOW aims at making it possible for employers to retain their employees as much as possible in the event of a loss of turnover of at least 20% as a result of the Corona crisis. To this end, a compensation in wage costs is provided of a maximum of 90% of the wage bill, related to the percentage of the decrease in turnover. Below the most important questions and answers are summed up.

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24-03-2020Q&A for employers in times of Covid-19

Van Bladel Advocaten has received several questions in relation to the Covid-19 virus in relation to the workplace over the last weeks. We have bundled the most relevant questions in this blog. Please refer to our website regularly for updates and new developments.

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18-03-2020Dutch measures with regard to labor costs related to COVID-19

The Minister of Social Affairs announced on March 17, 2020 that employers can apply for a compensation of wage costs if they expect at least a 20% loss of turnover due to the Corona crisis. This compensation scheme, the Temporary Emergency Measure Bridging for Work Retention (NOW), temporarily replaces the current reduction in working hours regulation that has expired immediately.

Although the scheme has yet to be worked out in detail - which is expected to happen within the next two weeks - the following is known:

 

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10-03-2020Corona virus and employment law – an overview for Dutch employers

The so-called Corona virus (COVID-19) has also reached the Netherlands. Worldwide measures are being taken to prevent further spread of the virus. What does this mean for local employers and employees? This article answers questions about the obligation of the employer to prevent contamination, the entitlement to salary (whether or not in quarantine), privacy aspects and the Dutch subsidy arrangement on shortening of working hours (“Werktijdverkorting”).

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