Recently, Belgium has implemented a whistleblower protection laws designed to shield those who report violations of EU or national laws within public and private organizations. These regulations stems from the European Whistleblower Directive, which was required to be incorporated into national legislation by 17 December 2021. Although Belgium missed this deadline, the Belgian law for the private sector was eventually published on 15 December 2022, with key provisions taking effect from 15 February 2023.
What is the Whistleblower Regulation?
This law provides a framework to protect individuals who report illegal, unethical, or dangerous activities within an organization. Whistleblowers can make both internal and external reports. The Belgian law ensures the confidentiality of the whistleblower and offers protection against retaliation, including dismissal, suspension, denial of promotion, demotion, discrimination, harassment and much more.
When Did the Whistleblower Law Come Into Effect in Belgium?
The whistleblower law has been in effect since 15 February 2023. From this date, companies with more than 250 employees were required to establish an internal reporting channel. Companies with at least 50 employees had to comply by 17 December 2023, providing a safe channel for employees to report potential misconduct.
Who is Required to Implement the Whistleblower Regulation?
The regulation is mandatory for private sector organizations with at least 50 employees. Once your company exceeds this threshold, the whistleblower law applies. The employee count is determined similarly to the method used for social elections. Employees of companies with less than 50 employees can however make an external report to the authorities and benefit from the same protection as the ones who did an internal report.
How to Comply with the Whistleblower Regulation
To meet the whistleblower regulation requirements, organizations should follow these steps:
- Social Consultation: Engage in discussions with social partners, such as the works council, to set up an internal reporting channel.
- Appoint a Reporting Manager: Designate an independent person (or group) responsible for managing and following up on reports.
- Establish an Internal Reporting System: Create a secure and confidential system for written or oral reports, complying with legal requirements.
- Develop a Policy: Draft a clear, legally sound whistleblowing policy outlining the procedures, the role of the reporting manager(s), external reporting channels, and protection measures. Update your privacy policy to transparently address how you handle whistleblower data.
- Communication: Inform all employees and stakeholders about the reporting system, internal channels, and associated procedures.
- Process Reports: reporting manager(s) must ensure to process each report, send acknowledgement of receipt and feedback in the legal deadlines and maintain communication with the whistleblower. The reported breach, if appeared to be true, must be addressed with adequate measures.
- Protect the Whistleblower: Ensure protection against retaliation and maintain the confidentiality of the whistleblower’s identity.
- Process Whistleblowing Data: reporting and processing of a report entails the exchange of (often sensitive) personal data, which must be processed according to privacy and data protection regulations. The Belgian Whistleblowing Regulation contains specific archiving rules that must also be complied with.
HR Legal is ready to support your company through each step of this process. Our team of experienced labor law attorneys can assist with the legal and practical implementation. We can also help you manage sensitive reports received by Whistleblowers (are they protected by the law? How to draft the mandatory feedback? How to address the reported violation while protecting Whistleblowers’ identity?).
Is It Necessary to Include the Whistleblower Regulation in your Work Regulations?
No, it is not mandatory to include the whistleblower regulation in the Work Regulations. However, it is beneficial to have a clear and accessible whistleblower policy and communicate it to all employees. This policy can be flexible and updated without the need for the formal procedures required for changes to Work Regulations. Employee representative bodies must however be consulted.
Consequences of Non-Compliance
Failure to comply with the whistleblowing directive and local whistleblower regulations can have serious consequences. Significant violations, such as not establishing an internal reporting channel in time, incorrect registration of reports, or obstructing reports, can result in sanctions under the Social Penal Code of Belgium. These level 4 sanctions may include administrative and criminal fines.
Companies that do not adhere to whistleblower protection measures risk having to pay damages to the whistleblower. These damages can range from 18 to 26 weeks of salary, depending on the circumstances. For specific reports, such as those involving money laundering or terrorism financing, the compensation may be set at six months’ gross salary or even the reintegration of the dismissed employee. If the victim is not an employee, compensation is based on actual damages, which must be proven by the victim.
Non-compliance can also damage a company’s reputation and undermine employee trust. It is crucial to comply with this regulation promptly.
