We use cookies to personalise content and ads, to provide social media features and to analyse our traffic. We also share information about your use of our site with our social media, advertising and analytics partners who may combine it with other information that you’ve provided to them or that they’ve collected from your use of their services.
Our privacy statement:
Below you can choose for which purposes you want to allow cookies on the website of De Clercq.
On February 7, 2024, the Supreme Court ruled on the protection of whistleblowers. This is the first time the Supreme Court has ruled on the Whistleblower Protection Act (Wbk). This law, among other things, stipulates that a whistleblower cannot be dismissed because of their report. But how far does that protection extend?
The Wbk has been in effect since February 18, 2023, and follows a European directive. The law states that an employer cannot disadvantage a whistleblower after a report. This means that an employer cannot dismiss them for that reason, but suspension, harassment, or a poor evaluation also fall under this.
Additionally, there is an important rule: if a whistleblower is disadvantaged, it is assumed that this is due to the report. The burden of proof lies with the employer. They must prove that the dismissal or other disadvantage is not due to the report.
In this case, it involved an employee of Omgevingsdienst IJsselland. He reported to the House for Whistleblowers (HvK) that there was a conflict of interest in the hiring of personnel. Meanwhile, he also had conflicts with colleagues and did not cooperate with solutions. The Omgevingsdienst decided to dismiss him due to a disturbed working relationship and culpable behavior.
The employee believed that he should be protected as a whistleblower and that his dismissal should not have gone through. The subdistrict court and later the court of appeal ruled that the dismissal was unrelated to the report because the Omgevingsdienst only heard about the report later.
The employee appealed to the Supreme Court, arguing that the court of appeal had set too low a standard for the employer. He believed that the Omgevingsdienst should not only refute that the dismissal was due to the report but also actively prove the contrary.
The Supreme Court agreed with the employee: the employer must prove that the dismissal has nothing to do with the report. But in this case, the court of appeal had already assessed this correctly. Therefore, the dismissal remained in place.
This ruling shows how important it is to keep a good personnel file. If an employee is dismissed after a report, you as an employer must be able to prove that there is another reason for the dismissal. Therefore, keep track of conflicts and incidents and document the steps taken to resolve them.
Do you want to know more about the Whistleblower Protection Act? Or about the protection of a whistleblower? Contact Renée Huijsmans-Zwijnenburg, Employment Law Attorney specializing in social safety.
Would you like to receive a monthly overview of updates and blogs in your mailbox? Click here to subscribe to the newsletter!
