The Netherlands Whistleblower Protection Act

What are the new rules outlined in the Dutch House for Whistleblowers Act?

• The burden of proof for demonstrating retaliation against a whistleblower is shifted from the whistleblower to the employer, making it easier for whistleblowers to seek protection. 
• There are stricter requirements around channels, intake and processing of reports, including receipt confirmation after a report is submitted, clear feedback deadlines and an obligation to maintain records in line with the GDPR. 
• Reporters can now report directly to the House for Whistleblowers or other competent authorities, in certain circumstances detailed below. 
• Both oral and written reporting facilities must be provided for reporters. 
• The scope of whistleblower protections is expanded to include anyone working within an organization. This includes self-employed workers, volunteers, trainees, contractors and suppliers. 
• A dedicated person per country for reports to be addressed to is not required as long as the minimum requirements for reporting channels are otherwise met. 
• In addition to the work council’s agreement, the employee representation must also provide consent before adopting or changing how internal reporting processes operate within an organization. 
• The concept of wrongdoing is expanded to include not only a suspicion of wrongdoing but also an imminent violation of EU rules of social interest, offering broader protections. 
• The House for Whistleblowers authority may impose fines as penalties for non-compliance with the new legislation.

How the Dutch Whistleblowing Act differs from the EU Directive

There are two ways that the Dutch Whistleblowing Act does not apply the provisions of the EU Directive when a report is or could be made: 

• Requirements for an external reporting channel – there are multiple competent authorities able to receive externally-submitted reports in the Netherlands. These are specific to certain sectors covering financial, healthcare and data protection authorities. 
• The EU Directive allows the reporting of probable EU law breaches (“very likely” to happen) and actual breaches of EU law. However, this provision does apply similarly to potential national law violations. The Directive reports of actual or highly likely Union law breaches, but minor infractions may be exempt from further action by the competent authority.

The revised law grants the Dutch Whistleblowers Authority’s investigation department the power of enforcement. Interested individuals, including whistleblowers or ex-employees, can seek a civil order from a district court to enforce compliance. However, provisions on sanctions and anonymous reporting will be added at a later date.