Dutch Whistleblower Protection Act – First Supreme Court Judgment in the Netherlands: Implications for Employers

As of 18 February 2023, the Dutch Whistleblower Protection Act (Wet Bescherming Klokkenluiders) came into effect, requiring organisations with at least 50 employees to establish internal whistle-blowing procedures. This Act transposes Directive (EU) 2019/1937 into Dutch law, setting common minimum standards for secure, confidential reporting channels and strong protection against retaliation.

The Act applies broadly, extending its reach beyond organisations with 50 or more employees. Entities in specific sectors, including financial services, money laundering prevention, civil aviation, maritime labour, and offshore oil and gas, must comply regardless of workforce size.

Since 17 December 2023, all legal entities in the financial sector and those subject to the Prevention of Money Laundering and Terrorist Financing Act (Wwft) must adhere to the Whistleblower Protection Act. These organisations must implement a whistle-blower reporting system accessible to employees, appoint an independent officer to receive reports and another independent officer to follow up on them (these roles may be held by the same person), and ensure strict confidentiality and protection from retaliation for whistle-blowers.

Surprisingly, many professional industry associations have provided little guidance to their members on compliance. However, identifying whether an organisation falls under the Act is straightforward. The annexes to Directive (EU) 2019/1937 cross-reference EU anti-money laundering regulations, which in the Netherlands are implemented in the Wwft. Thus, any organisation required to comply with the Wwft must also comply with the Whistleblower Act, irrespective of employee count.

The first Dutch Supreme Court ruling under the Whistleblower Protection Act has significant implications for employers. Central to the case was the prohibition against retaliation, which includes a presumption in favour of the whistle-blower: if an employee faces adverse treatment after making a report, it is presumed to be linked to the whistle-blowing, unless the employer proves otherwise.

In this case, the subdistrict court had dissolved an employment contract due to a disrupted working relationship. The employee, who had filed a whistle-blower report concerning conflicts of interest and procurement violations in 2022, argued that the dismissal violated the protection against retaliation. The employer maintained that the termination was unrelated to the report.

The Supreme Court reinforced the statutory presumption: once a whistle-blower alleges they suffered harm, the burden shifts to the employer to disprove the connection between the adverse action and the whistle-blower report. The employer, in this case, successfully provided contrary evidence, proving that the employment termination was due to an irreparable breakdown of trust rather than the whistle-blowing itself. Consequently, the Supreme Court dismissed the employee’s appeal, aligning with the Advocate General’s advisory opinion.

This ruling underscores the necessity for businesses to proactively comply with the Whistleblower Protection Act. Employers should establish clear and well-documented internal reporting mechanisms, ensure that designated officers handling reports are independent and trained, and maintain comprehensive records to demonstrate compliance and provide evidence in the event of legal challenges. Given the shifting burden of proof in whistle-blower disputes, organisations must be prepared to substantiate their employment decisions with strong, objective justifications. Non-compliance can, not only, lead to reputational and financial risks but also legal liability under the evolving jurisprudence of the Whistleblower Protection Act.