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Are you ready for the Whistle-blower Directive?

17 December 2021 Miet Vanhegen Employers

The European Whistle-blower Directive had to be transposed into Belgian law by 17 December. Although Belgium did not meet the deadline, you can already prepare your organisation for what is to come, as the implementation of this directive will bring new obligations with it. What exactly do you need to prepare for as an employer? We give you the broad outlines of the Whistle-blower Directive.

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The Whistle-blower directive in a nutshell

When someone brings abuses to light in his/her (former) organisation, we speak of a whistle-blower. The Whistle-blower Directive aims to establish a system (reporting channel) for the early detection and treatment of shortcomings within public and private organisations, while providing effective protection for whistle-blowers.

The whistle-blower can be an (ex-)employee (or public servant), job applicant, volunteer, intern or self-employed person working in the company, but also someone working under the supervision and direction of (sub-)contractors and suppliers, etc.

Internal and external reporting channels

Among other things, the Directive imposes an obligation on organisations and Member States to establish reporting channels that meet certain requirements in order to ensure the confidentiality of the reporter's identity, and the impartial follow-up of a report.

Organisations with at least 50 employees must set up an internal reporting system, and keep a register of each report received. The reporting channel will have to comply with various requirements (including security, confidentiality, information, due diligence and impartiality) and procedural rules.

For example, whistle-blowers should be able to raise their concerns in writing (online, by post, etc.) or verbally (e.g. by phone or in person), through an internal or an external outsourced system. Companies will have to appoint an impartial person or department responsible for following up the reports within certain time limits.

As an employer, you will also have to ensure clear and accessible information about the available reporting channels to your own employees (e.g. via the labour regulations), but also to third parties such as external service providers.

Belgium can also grant legal entities with 50 to 249 employees an additional two years, i.e. until 17 December 2023, to set up an internal reporting channel.

In addition, Belgium is itself obliged to designate an independent and autonomous authority as an external reporting channel for receiving and processing information on infringements.

As an ultimate remedy, the reporter will also have the option, under certain conditions, to make the information public.

Protection

When a whistle-blower reports an infringement of regulations in areas such as public procurement, financial services, environmental protection, public health, etc., he also enjoys protection against reprisals in the broadest sense, under specific conditions. These include protection against dismissal, but also suspension, demotion, refusal of promotion, harassment or exclusion, discrimination or adverse treatment, early termination or cancellation of a contract for the supply of goods or services, etc.

The protection measures also apply to all those who are related to the reporter (e.g. colleagues or family members or persons assisting the reporter) and who may be subject to victimisation in a work context.

Take action now

Although Belgium did not meet the transposition deadline of 17 December 2021 - it will probably be in the spring of 2022 - your organisation can already prepare for the implementation of the directive. For example, think now about whether you want to keep the reporting process in-house or outsource it. What policy do you want to adopt within the company, and how are you going to communicate information about reporting channels? Do not forget to consult with social partners.

Prepare for the Whistle-blower Directive

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Written by Miet Vanhegen

Juridisch adviseur

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