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.
When someone exposes wrongdoing in their (former) organisation, we refer to them as a whistleblower. This new legislation introduces the obligation to establish reporting channels so that breaches of certain legislation within private organisations can be detected and dealt with at an early stage, while providing effective protection for whistleblowers.
The whistleblower may be a (former) employee, job applicant, volunteer, trainee or self-employed person working within the company, a shareholder or director, but it can also be someone working under the supervision and direction of (sub-)contractors and suppliers, etc.
A whistleblower can only enjoy protection if he or she reports a breach of one of the following laws:
Among other things, the law imposes an obligation on organisations and the government to install reporting channels that meet certain requirements 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, after consultation with their social partners, and keep a register of every report received. The reporting channel must comply with various requirements (including security, confidentiality, information, diligence and impartiality) and procedural rules.
Thus, whistleblowers must be able to raise their concerns in writing (online, by mail, etc.) or orally (e.g. by phone or in person), through an internal or an externally-outsourced system. Companies must designate an impartial person or department responsible for following up reports within a certain deadline.
In addition, the internal reporting channel must be designed, set up and managed to securely protect the confidentiality of the identity of the reporter and any third parties mentioned in the report. Non-authorised staff should not be able to access it.
As an employer, you must also provide 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.
For organisations of 250 employees or more, this internal reporting channel must be set up by 15 February 2023. Legal entities with 50 to 249 employees will have more time, notably until 17 December 2023, to set up their internal reporting channel.
In addition, the legislator has also designated authorities to set up independent and autonomous external reporting channels to receive and process information on breaches. The Federal Ombudsmen will be in charge of coordinating external reporting for the private sector.
As an ultimum remedium, the reporter will also have the option, under certain conditions, to disclose the information.
When a whistleblower reports a breach of regulations in areas such as public procurement, financial services, environmental protection, public health, etc., they also enjoy protection against reprisals in the broadest sense, under specific conditions. For example, protection against dismissal, but also suspension, demotion, refusal of a promotion, harassment or exclusion, discrimination or adverse treatment, early termination or cancellation of a contract for supply of goods or services, etc.
These protective measures also apply to all those connected to the reporting persons (e.g. colleagues or family members or persons assisting the reporting person) who may become victims of retaliation in a work context.
The law for private sector organisations with at least 250 employees will come into force on 15 February 2023 (two months after publication in the Belgian Official Gazette). For organisations with 50 to 249 employees, these provisions will apply from 17 December 2023.
However, your organisation can already prepare for the transposition of the directive. For example, you can decide now whether you want to keep the notification process in-house or outsource it. Which policy do you want to adopt within your company and how will you communicate the information on reporting channels? Don’t forget to consult with your social partners on this.
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