On 15 December 2022, the law transposing Directive (EU) 2019/1937 of 23 October 2017 on the protection of persons who report breaches of European Union Law (the “Whistleblower Act”) into Belgian law for the private sector was published in the Belgian Official Gazette.
For larger companies, this legislation will result in new obligations such as setting up internal reporting channels:
- Companies employing more than 249 employees or active in certain industries (such as the financial industry) will indeed need to implement internal reporting channels by 15 February 2023. This will require thorough preparation.
- Companies employing between 50 and 249 employees should comply with the same obligations by 17 December 2023.
All companies (even SMEs employing less than 50 employees) should in any case prepare for employees reporting breaches, through external channels.
This blog sets out the main features of the Whistleblower Act and the actions to take as an employer.
The Whistleblower Act aims at improving the protection of detectors of infringements of the European Union's law (called “whistleblowers”). Specifically, the Whistleblower Act obliges the establishment of effective internal and external reporting channels which protect whistleblowers from retaliation.
Who is protected?
The Whistleblower Act applies in the private sector to whistleblowers that have obtained information on infringements in a work-related context. Not only employees are protected but also self-employed persons, shareholders, persons belonging to the administrative, managerial or supervisory body of an undertaking, volunteers, remunerated trainees and anyone working under the supervision and control of contractors, subcontractors and suppliers. The Whistleblower Act also applies to whistleblowers whose employment contracts have been terminated in the meantime. Moreover, it applies to whistleblowers whose working relationships have yet to begin in case information about violations is obtained during the recruitment process or other pre-contractual negotiations.
Broad material scope
The material scope of the Whistleblower Act is broader than the EU Directive and also includes tax and social fraud. Moreover, it concerns infringements relating to public procurement, financial services, product safety and product conformity, environmental protection, public health, consumer protection, privacy protection and personal data and security of network and information systems.
Internal channels – tailored obligations for businesses?
Companies (legal entities) in the private sector with 50 or more employees must establish channels and procedures for whistleblowing, after consultation with the social partners. The same applies to companies active in the financial industry or the prevention of money laundering, irrespective of the number of employees they employ).
With a few exceptions, companies with fewer than 50 employees need in principle not set up internal reporting channels. Small businesses therefore do not need to take any initiatives in this respect.
Internal channels should include a number of elements such as the possibility to blow the whistle verbally or in writing, the appointment of a reporting manager and a reasonable time to provide feedback. The Whistleblower Act does not indicate how the internal channels and procedures should be implemented. As a result, companies are free to implement the rules in the work rules, a collective bargaining agreement or a policy. Given its flexibility, a whistleblower policy is usually the best option.
External channels – to be used to a large extent?
An external authority should also be set up to act as independent and autonomous external reporting channel. This external authority shall be competent to receive notifications, provide feedback and provide follow-up on notifications. The competent authority (or authorities) is (are) still to be designated by Royal Decree. In the absence of such a designation, the Federal Ombudsmen will take up this role.
A whistleblower is free to decide whether to use an internal channel or an external channel. The goal, however, is to encourage the use of the internal channel as much as possible.
Protection measures – necessary, but also complex for employers
The Whistleblower Act provides for various measures to protect the whistleblowers, such as a confidentiality obligation (confidentiality of the whistleblower’s identity) and a ban on retaliation against whistleblowers. In that sense, employees are protected against dismissal and suspension of the employment contract, demotion, the foregoing of a promotion, the modification of employment conditions, negative appraisals, harassment and the non-renewal of a temporary employment contract.
Whistleblowers who are nonetheless victims of retaliation can receive compensation equal to at least 18 weeks' and not exceeding 26 weeks' remuneration or damages compensating the actually suffered. More stringent rules apply to the financial industry, however. It is up to the employer to prove that any measure taken against the employee is not related to them blowing the whistle and this for an unlimited period of time.
Finally, sanctions are provided for companies who obstruct or attempt to prevent a report, retaliate against whistleblowers or violate the confidentiality of a whistleblower’s identity.
These sanctions vary from terms of imprisonment starting at 6 months and up to 3 years, and fines between EUR 4,800 and EUR 48,000.
When should companies take action?
The Whistleblower Act will enter into force on 15 February 2023. By then, companies employing 249 employee or more, as well as those active in the financial services industry or the prevention of money-laundering (regardless the number of employees they employ), should establish internal reporting channels in compliance with the Whistleblower Act’s provisions.
An exception applies to companies with 50 to 249 employees: they must have set up internal reporting channels by 17 December 2023. However, the other provisions of the law (e.g. protection for whistleblowers) do already apply as of 15 February 2023.