Common challenges in the implementation of the Dutch Whistleblower Protection Act

As explained in the previous blogpost, whistleblowers enjoy greater protection since the introduction of the Whistleblower Protection Act (‘Wet Bescherming Klokkenluiders’, hereinafter: WPA). In short, organisations with at least fifty employees are required to:

• .. establish an internal reporting procedure, with multiple reporting channels (i.e., oral, written, and in person);
• .. communicate the procedure, protection, and reporting opportunities;
• .. refrain from retaliation;
• .. confidentially record, treat, and store (personal) information;
• .. follow-up on internal reports within a reasonable time.

Challenges

These requirements cannot be satisfied in isolation and need to be tailored to each organisation. This naturally introduces challenges. Amongst others, organisations need sufficient resources and the right expertise to deal with incoming (whistleblower) reports. They also need policies and procedures to appropriately deal with reports and clear communication throughout the organisation. The most common challenges are further illustrated below.

Number of reports.
There are currently more reporting opportunities, the concept of reportable wrongdoing is extended, and more people are protected (see previous blogpost). This is expected to increase the number of reports within organisations. In turn, this will increase the number of investigations, internal disagreements (and legal disputes) and invalid and/or unreliable reports. Common challenges are:

• How to prepare for the uncertain increase of reports?
• How to build the capacity to deal with and follow-up on reports?
• How to build the expertise to deal with reports independently, objectively and confidentially?
• How to effectively manage and investigate the reports?
• How to guarantee privacy to the parties involved?

The concept of reportable wrongdoing.
The WPA protects whistleblowers that report on a variety of wrongdoings. Reports can concern:

• breaches of EU legislation; and/or
• infringements of national legislation if a public interest is involved; and/or
• breaches of the organisation’s internal policies with a legal basis, if a public interest is involved; and/or
• endangerment of public health, safety or the environment as well as any misconduct that endangers the proper operation of public services and/or companies.

This broad and open definition of reportable wrongdoing is challenging for organisations that are trying to comply to the WPA. Not only because of the absence of an objective test that determines whether a public interest is involved, but also because the definitions exclude certain types of wrongdoing. Corruption only qualifies as a reportable wrongdoing if it is sufficiently severe and occurs structurally; and sexual intimidation does not even seem to qualify as reportable wrongdoing under the WPA. Common challenges are:

• How to define the concept of reportable wrongdoing?
• How to deal with whistleblowers’ insecurity regarding legal protection?
• How to ensure the presence of the required expertise to judge the merits of the report?

Business structure.
Furthermore, it is noticed that the organisation’s structure can have a significant impact on the practical applicability of the WPA within an organisation. Two examples to illustrate this.

First, businesses of a small size (but exceeding 49 employees) may face limitations. Not only employees, but self-employed workers, temporary workers, volunteers, contractors, interns, job applicants, and shareholders are protected. This impacts businesses with a small core team that mostly work with, for example, self-employed or temporary workers. Common challenges they face are:

• How to ensure accessibility of (information regarding) the reporting channel to a dynamic pool of workers?
• How to obtain sufficient capacity and expertise to deal with reports?
• Who to install as an independent and impartial officer?

Second, businesses with a global presence face challenges implementing the requirements of the WPA. That is, international businesses naturally deal within different jurisdictions. Common challenges they face are:

• How to satisfy legal requirements from different jurisdictions in the internal reporting procedure?
• How to build multiple, accessible, and equally protective reporting channels within different jurisdictions?
• How to ensure that proper handling of the reports is done throughout the organisation in a way that fits legal requirements and cultural expectations?

Business culture.
An effective internal reporting procedure incentivises protected persons to report wrongdoing if they encounter it. It is essential for businesses to promote such a speak up culture. A culture in which people can act with integrity and safely express contradictory opinions. Common challenges when setting up and maintaining such a culture are:

• How to create and maintain a Speak Up culture? Where to start or continue building such a culture?
• How to improve awareness about reporting opportunities?
• How to remove the fear of retaliation?
• How to incentivise internal reporting?

These are just some of the challenges that businesses are currently facing. It clearly paints the picture: improving whistleblower protection does not come without challenges. How did you address these challenges? Did you already run into some of the challenges mentioned above?

Some businesses might not know where to start, when facing these challenges and implementing the requirements. This is where Deloitte can help. We advise and assist in the design and implementation of whistleblowing / internal reporting policies and procedures. We can (help to) execute investigations and follow-ups, and quickly address challenges with our specific and wide-scale expertise on this subject.

More information?

If you have any questions regarding whistleblowing, the impact of new regulations on your organisation, or how we can assist you in adapting to these changes, please feel free to contact us using the contact details provided below. We are here to support you in addressing any concerns or inquiries you may have.