Dutch companies falling short of compliance with new EU Whistleblower Directive

Like all EU Member States, the Netherlands will have to transpose the new EU Directive for Whistleblower Protection into national law by 17 December 2021. Among other legal changes, this will mean that in cases of alleged retaliation against whistleblowers, employers will have to prove they are not punishing whistleblowers for speaking up, rather than the burden of proof lying on the employee. Furthermore, all forms of reporting will have to be protected: a whistleblower must be able to choose the most suitable channel through which to raise a concern. The current requirement in Dutch law that a suspicion of wrongdoing must be reported via an internal channel first will become obsolete.

The Directive therefore implies significant changes for companies in the Netherlands, too. It will become even more important to implement an effective company whistleblowing framework that encourages whistleblowers to report internally first, rather than externally. Depending on how Dutch lawmakers transpose the Directive, companies that already have an internal whistleblowing system may need to make their system better able to handle anonymous reporting, for example. They may also need to expand the scope of permissible subject matters and re-define internal responsibilities.

With our partners across the Transparency International movement, TI Netherlands intensively advocated for the EU Directive, which incorporates many of our main policy recommendations. Now, we have assessed the whistleblower frameworks of 68 companies within the trade, industry, finance and energy sector in the Netherlands, measuring them on three dimensions: protection against retaliation, suitability of disclosure channels and investigation procedures, and corporate culture.

The resulting study Whistleblowing Frameworks 2019 provides insight into the current level of whistleblower protection among the assessed companies and makes recommendations for providing more effective protection to people who speak up in the workplace.

Particularly in the field of corporate culture, there is still considerable room for improvement.

Staff members are the eyes and ears of any organisation, and whistleblowing frameworks are a vital component of good governance and risk management. Clear procedures for whistleblowing help protect companies, public bodies and non-profit organisations from the effects of misconduct, including legal liability, serious financial losses and lasting reputational harm.

An effective whistleblowing framework also fosters a corporate culture of trust and responsiveness. Research shows that along with effective reporting channels, a positive perception of corporate culture regarding integrity and openness, makes it more likely that employees will report misconduct.

1. Robust protection: Reporters of wrongdoing must be able to make their disclosure in a safe and confidential manner, and must be protected against all forms of retaliation. Organisations should pursue a policy of prohibiting and sanctioning any form of prejudice against a whistleblower. They should be able to demonstrate that they have not disadvantaged the whistleblower as a result of their disclosure.

2. Transparent procedures and additional channels: Organisations must inform reporting persons about procedures and internal, external and public reporting channels in an appropriate manner. Internal procedures must ensure a thorough, timely and complete handling of a disclosure, and feedback to the reporting person. Businesses must provide for accessible, diverse and reliable channels to disclose suspected wrongdoing, which ensures confidentiality, and anonymity where required.

3. Encourage open corporate culture: Company leadership should foster a "speak up culture" by creating a psychologically safe workplace that encourages employees to raise their concerns and disclose suspected wrongdoing without fear of retaliation. The right behaviour in the workplace is promoted by setting a good example and by communicating openly and transparently. In general, honesty and openness in a discussion on viewpoints, emotions, and dilemmas is an unambiguous indicator of the organisation’s ethical focus.

The full study “Whistleblowing Frameworks 2019” can be downloaded here.
For more information on this study, please contact Lotte Rooijendijk from Transparency International Nederland at [email protected] or [email protected]