A whistleblower's report: as an employer, know your clappers

Friday 7 February 2025 marked the first time in employment law land that the Supreme Court has delivered a judgment on the Whistleblowers Protection Act (Wbk). 

The Wbk

Although since the abuses at the Voice of Holland, among others, it has been a common good to properly protect whistleblowers from possible retaliation, the Wbk does not apply to every company. It is mainly medium-sized (50 to 249 employees) and large (more than 250 employees) companies that really need to pay close attention to this. 

An important part of the law is that a whistleblower may not be harmed because of his report if he has reasonable grounds to believe that his report is correct. Building on this, the Wbk has a presumption of evidence in favour of the whistleblower. In short, this presumption of evidence means that if a reporter is disadvantaged after his report, for example if the reporter is subsequently dismissed, it is assumed that this is inextricably linked to the report or its disclosure.

What to do as an employer?

It may happen that an employee has made a whistleblower report and the employer wishes to impose a measure on him for it, such as dismissal. Whether this can actually be done depends on the circumstances of the case, which now adds an onerous extra circumstance.

Indeed, the presumption of proof means that the employer starts at a disadvantage, and namely it is up to her to prove that the employee is not disadvantaged because of the whistleblower report. The Supreme Court has indicated that to do so, it is insufficient to ‘disprove’ the cause-and-effect relationship between the measure and the report. As an employer, you really have to prove that the whistleblower report has nothing to do with the intention to impose the measure. And this is a lot trickier, since as an employer you really have to prove otherwise.

As an employer, it is of course always important to (be able to) substantiate well why a dismissal is being decided. In the case of a whistleblower's report, after this Supreme Court ruling, we can say that the bar is set a little higher in that case.
Do you have questions about this or would you like advice on your whistleblowing policy? If so, please contact our employment law specialists: Dennis Oud, Elke Hofman-Bijvank, Tessa Sipkema or Tim van Riel.

You can read the ruling here.