Whistleblowing Compliance for Companies With 50 to 249 Employees: The Deadline Is Fast Approaching, It’s Time to Act

Now more than a year ago, on November 28, 2022, the long-awaited act on the protection of persons who report violations of EU or national law detected within a legal entity in the private sector, the so-called the "Whistleblowing Protection Act", was adopted in Belgium.

The Whistleblowing Protection Act stipulates different timings for its application depending on the size of the companies concerned. Companies employing 250 employees must already have an internal reporting channel in place since February 15, 2023 and those employing between 50 and 249 employees must have such a reporting channel in place by December 17, 2023. Now that the latter deadline is approaching, as a reminder, companies employing 50+ employees have the following obligations in relation to whistleblowing compliance:

1. Internal reporting channel, procedure and follow-up
   
• Social partners: prior to setting up the reporting channel, you must ensure that you have consulted the Works Council or, failing that, the Trade Union Delegation or, failing that, the Committee for Prevention and Protection at Work or, failing that, the company's employees.
• Form: the form of the reporting channel can be a simple e-mail address, a telephone number, hotline or an online platform (preferable for confidentiality reasons). You can manage the channel in-house or outsource its operations.
• Reporting Manager: you must have appointed or intend to appoint (in the case of outsourcing) a reporting manager. This person may be an individual or a competent impartial department.
• Follow-up: the procedure must provide for diligent follow-up by the Reporting Manager.
• Acknowledgment: you must ensure that the reporting channel provides the whistleblower with an acknowledgement of receipt within 7 calendar days of receipt of any reporting. In addition, feedback must be provided either: i) no later than 3 months after acknowledgement; or ii) 3 months after expiry of the 7-day period following receipt of the report.
  
  
2. An internal reporting channel: for whom? for what?
• Access: the reporting channel must be readily available to all employees, at a minimum. As a company, you may decide to extend the use of the internal reporting channel to all others persons who have acquired information in a work-related context such as freelancers, shareholders, trainees, volunteers, employees of contractors, subcontractors and suppliers ..
• Reporting: protection relates to breaches of law that fall within specified sectors such as public procurement, financial services, product safety and conformity, environmental protection, public health, consumer protection, privacy and personal data protection, network and information systems security, tax and social fraud.
  
  
3. Communication and information
• You must ensure that you have informed employees of the existence of the reporting channel. For example, a policy could be created which is easily accessible to all (i.e via the intranet).
• You must also ensure that you have informed employees of the existence of external reporting channel and public disclosure, while raising awareness of the benefits of using the internal channel. Again, a whistleblowing policy is a good tool to do so.
  
  
4. Protective measures
• Confidentiality: the identity of the whistleblower must remain confidential and must not be disclosed without explicit consent, unless it is necessary and proportionate in the context of the investigation.
• Retaliation: the whistleblower must benefit from prohibition of forms of retaliation associated with the reporting i.e dismissal, demotion, imposition of a disciplinary sanction, non-renewal or early termination of a temporary employment contract etc...
  

  Whistleblowers are protected provided that: (i) they have reasonable grounds for believing that the information on breaches reported was true at the time of reporting; (ii) that the information fell within the scope of the law; and (iii) they made either an internal or external report or a public disclosure.

  Be aware that those measures apply to all persons who acquired information on breaches in a work-related context.
  
  

5. Sanctions

Failure to set up a reporting channel, or failure to establish and monitor the relevant reporting procedures may be subject to administrative and/or criminal fines.

In the event of retaliation against employees, you may be obliged to pay damages between 18 and 26 weeks' salary.

 

The Labor & Employment team is at your disposal to help you to check your company's compliance with Whistleblowing regulations.