Clifford Chance

The enactment per 18 February 2023 of the "Whistleblowers Protection Law" (Wet bescherming klokkenluiders) in the Netherlands will have direct consequences for companies in the private sector with 250+ employees. Companies employing between 50-249 employees must comply with the new requirements by 17 December 2023.

Based on currently applicable legislation, companies with 50+ employees will already have an internal procedure for reporting wrongdoing in place. Amendments will have to be made to relevant policies based on the requirements of the new legislation, providing for e.g.:

1. additional procedural requirements:
   • procedure to reflect that reporting can be done in writing or orally by telephone or through other voice messaging systems, and, upon request by the reporting person, by means of a physical meeting within a reasonable timeframe;
   • the receipt of a report will need to be confirmed to the reporting person within 7 days;
   • information on the assessment of the report, and, where relevant, follow up, to be shared with the reporting person within a reasonable period, not exceeding three months from the acknowledgment of receipt;
   • required registration of reports by the employer;
   • possibility to report anonymously, e.g., via trusted person (vertrouwenspersoon) or other intermediary meeting certain requirements (enactment of this requirement will follow at a later stage).
      
2. wider material and personal scope of procedure:
   • material scope: concerns of wrongdoing (vermoeden van een misstand) to also include (impending) breaches of specified Union law, as well as acts or omissions that affect the public interest. For this purpose, the law provides under which circumstances the public interest will in any event be at stake, and specifies that these acts and omissions may e.g. follow from non-compliance with statutory requirements or -under conditions- internal rules;
   • personal scope: open to anyone who in a work-related context has acquired information on wrongdoing, and who may be confronted with detrimental actions/ retaliation if they would report thereon.
     
     
3. procedural changes: no longer required to report internally first to invoke protection against retaliation.
   
   
4. new complexity: where the law provides that for companies employing between 50-249 employees, 'means' for receiving and following up on reports can be shared, there is unclarity whether e.g. the appointment of a central team of specialists within a group of (larger) companies is compliant with the Directive. Different views and approaches are taken by the legislators of the individual EU member states.

Please note that changes to an existing procedure will require the works council's or employee representative body's consent. If a works council is absent, the consent of the majority of employees is required (unless the contents hereof have been provided for in a collective labour agreement).

Of course, there is more! And note that the focus of the above is on the internal procedure.
We are very happy to inform you further, or help you review your existing policies.