Reporting requirement. Whistleblower Shelter Act
This notification obligation has been drawn up on behalf of Van Uitert Companies B.V. and also applies to all of its subsidiaries, hereinafter referred to as Van Uitert Companies.
Article 1.1. In this regulation:
The ‘Organization’ is understood to be Van Uitert Companies
Reporter: the employee or other person who has come in contact with the organization through his or her work and who files a report. These persons in any case include temporary workers, seconded persons, trainees, volunteers and other hired persons.
1.2 Suspicion of social misconduct: the Reporter’s suspicion that
there is serious misconduct in the organization insofar as:
a. the suspicion is based on reasonable grounds arising from the knowledge gained by the Reporter while employed by the Organization or arising from the knowledge acquired by the Reporter through his/her work at the Organization.
b. the public interest is in any case in jeopardy when:
- there is an (imminent) violation of a statutory regulation
- there is an (imminent) danger to public health
- there is an (imminent) danger to the safety of persons
- there is an (imminent) danger of harm to the environment
- there is an (imminent) danger to the proper functioning of the public service or a business as a result of an improper act or omission.
- Suspicion of social misconduct also includes imminent misconduct, a violation of integrity in which persons violate the norms and values of the Organization and irregularities in the implementation, structures, processes or procedures in the organization that are so serious that they transcend the responsibility of the direct supervisors.
1.3. Executive Board: The persons appointed as the Executive Board of the Organization.
1.4. Reporting officer: the person appointed by the Management Board/Works Council to
act as a confidential adviser for the Organization in the framework of this regulation.
1.5. External Party: in this regulation, except in the cases of
article 5 paragraph 3 of this regulation, External Party means:
a. a competent authority charged with investigating and prosecuting criminal offences, such as the Public Prosecution Service
b. a competent authority charged with supervising compliance with the provisions of or pursuant to any statutory regulation, such as the SZW Inspectorate
c. another competent authority to which the suspicion of wrongdoing can be reported, such as the Whistleblower Authority.
Article 2.1. The Reporter will report suspected social misconduct to the Reporting Officer in accordance with the procedure described in this regulation. If there is any doubt about whether there is a Suspicion of social misconduct, the Reporter can test this impartially and in good faith with the Reporting Officer before filing a formal report.
2.2. If the report of a Suspicion of social misconduct involves the Reporting Officer, the report will be made to the Management Board.
2.3. Unless there are grounds for an exception as referred to in Article 5 paragraph 2 of this regulation, the Reporter can also report Suspected social misconduct to the Management Board in accordance with the procedure described in this regulation.
2.4. The Reporting Officer will record this report in writing, stating the date of receipt, and will have the report signed for approval by the Reporter, who will receive a copy. The receiving officer will inform the Management Board as soon as possible of a reported Suspicion of social misconduct, stating the date on which the report was received – if possible, on the same day.
2.5. If the report has been made to the Reporting Officer, the latter will inform the Management Board in a manner agreed with the Reporter. An investigation will be launched as soon as possible after receipt of the report. In addition, the Reporting Officer, in consultation with the Management Board, will assess whether an External Report should be filed. Both the Reporter and the person to whom the Suspicion of social misconduct has been reported will treat the report confidentially and will comply with the requirements of the GDPR.
2.6. The Organization is not obliged to investigate every report. If the Organization chooses not to investigate a report, it will inform the Reporter of this decision as soon as possible, stating the reasons. If the report is indeed investigated, the Reporter will be informed about the next steps.
2.7. Once the investigation has been completed, the Reporter will be informed of the main conclusions. The Reporter will be given the opportunity to respond to the investigation result and to the conclusion drawn by the Organization before the investigation is closed. Based on this, the Reporter can decide whether to file an external report.
Article 3.1. The Organization appoints a reporting officer. The Reporting Officer acts as process monitor during the reporting procedure. The Reporter can obtain advice in the strictest confidentiality from the Reporting Officer about the best course of action to take.
3.2. The Reporting Officer functions with authority and credibility and in that capacity is independent from the management of the Organization.
3.3. If the Reporting Officer is an employee who is employed by the Organization, the legal protection of Article 21 of the Works Councils Act and Article 7:658b of the Dutch Civil Code applies mutatis mutandis.
Article 4.1. Within a period of eight (8) weeks from the moment of the internal report, the Reporter will be informed in writing by the Reporting Officer or the Management Board of the substantive conclusion about the reported Suspicion of social misconduct. The steps to which the report has led will also be indicated. The conclusion will be formulated with due observance of the possible confidential nature of the (company) information to be provided and the applicable legal provisions, such as privacy regulations.
4.2. If the conclusion cannot be provided within eight (8) weeks, the Reporter will be notified in writing by the Management Board or Reporting Officer. The period within which the Reporter can expect the conclusion will also be indicated.
Article 5.1. After completing the internal report procedure as referred to in Article 2 of this regulation, the Reporter may consider reporting the Suspicion of social misconduct to an External Party if:
a. the Reporter does not agree with the conclusion and the intended actions referred to in Article 5 of this regulation and is of the opinion that the suspicion has been wrongly disregarded, or
b. the Reporter, even after inquiry, has not received a conclusion within the term(s) referred to in Article 5 of this regulation.
5.2. The Reporter may immediately consider reporting the Suspicion of social misconduct to an External Party, ignoring the internal reporting procedure, if it cannot reasonably be demanded of him that he first files an internal report. This applies in any case in the following situations where there is:
a. acute danger, where a compelling and urgent public interest makes it necessary to immediately report it externally
b. the Reporter has a reasonable suspicion that the most senior responsible person in the Organization’s management is involved in his or her suspicion of social misconduct
c. a situation in which there is reasonable cause for the Reporter to fear countermeasures as a result of the internal report
d. a clearly identifiable threat of embezzlement or destruction of evidence
e. an earlier report in accordance with the procedure of the same Suspected social misconduct that has not eliminated the Suspected social misconduct
f. a legal obligation to report directly to an External Party
5.3. If, in the reasonable opinion of the Reporter, he or she reports a Suspected social misconduct in good faith because, in his or her reasonable opinion, this is of such major public interest that, given the circumstances of the case, that interest must be given greater weight than the Organization’s need for confidentiality, the External Party as specified in paragraph 1 or paragraph 2 of this article can also be understood to mean another external third party who, in the reasonable opinion of the Reporter, may be deemed capable of directly or indirectly eliminating the suspected misconduct or having it eliminated. In doing so, the Reporter takes into account the effectiveness with which the other external party chosen by him/her can intervene on the one hand, and the desire of the Organization for as little damage as possible as a result of that intervention on the other hand. The Reporter will only file an external report as set out in this paragraph if no other potentially less harmful alternatives are available.
5.4. If no suitable external reporting point exists, an external report can be submitted to the Investigation department of the Whistleblower Authority, which can investigate the report if:
a. it contains the following information:
the name and address of the Reporter, the date, a description of the Suspicion of social misconduct and the name of the Organization concerned, the reason(s) why the Reporter believes that it involves a Suspicion of social misconduct.
b. the Reporter has a ‘reasonable suspicion’ of social misconduct. This means that he/she does not have to prove everything in detail but must be able to show that something is wrong.
c. it must involve a Suspicion of social misconduct.
d. there is no other authority (such as the Public Prosecution Service, an inspectorate or supervisor) that can investigate the misconduct, or if this authority does not (properly) investigate the misconduct
e. an internal report was first filed but it was not properly addressed; or the Reporter had a valid reason for not filing the report internally
f. the Whistleblower Authority is not already investigating the misconduct
g. the court has not already rendered an irrevocable decision about the misconduct
h. it is not about minor integrity incidents. After all, the Whistleblower Authority only investigates work-related misconduct.
What is the whistleblower policy not intended for?
Article 6.1. This regulation does not replace existing procedures for dealing with (individual) complaints or irregularities. These types of complaints and irregularities must first be discussed through the normal channels with the direct supervisor, the supervisor on duty, the HR manager or another regular designated person.
Legal protection Reporter
Article 7.1. The Reporting Officer will keep the Reporter’s identity as secret as possible. If it is not possible to keep the Reporter’s identity secret due to further action that must be taken to combat the Suspicion of social misconduct, the Reporting Officer will first contact the Reporter to discuss this.
7.2. The Reporter of a Suspicion of social misconduct who acts in good faith and with due care comes under the legal protection of Article 7:658b of the Dutch Civil Code. This means that the Reporter will not be disadvantaged in any way by or because of his/her report of Suspected social misconduct. In other words, after reporting misconduct the Reporter is not treated more disadvantageously by the Organization and/or his/her colleagues than he/she would have been treated if he/she had not reported the misconduct. This legal protection applies both while the internal or external report is being dealt with and afterwards.
7.3. If the investigation shows that it cannot be confirmed that there is a Suspicion of social misconduct while the Reporter has acted in good faith, no measures will be taken against the Reporter.
7.4. If the investigation shows that misconduct has been reported falsely or in bad faith, this may constitute grounds for taking measures against the Reporter in reasonable proportion to those grounds.
7.5. If the Reporter is penalized, treated unfairly or otherwise harmed without reasonable cause by a particular person, that person will have to face the consequences.
7.6.action is in any case involved if:
a. the Reporter has first raised the relevant facts internally as referred to in Article 2 of this regulation, unless this could not reasonably be expected of him/her, as provided for in this regulation
b. the Reporter makes the facts known in an appropriate and proportionate manner when reporting to an External Party as provided for in this regulation
c. the Reporter has reasonable grounds to suspect that the facts in question are correct as referred to in Article 1(3)(a) of this regulation
d. when reporting to an External party, the public interest as referred to in Article 1 paragraph 3 sub b of this regulation is at stake, and
e. in the case of a report in the sense of Article 6, paragraph 3 of this regulation, the social importance of the report prevails over the Organization’s interest in terms of secrecy.
7.7. The Reporter will also enjoy the protection referred to in Article 8. of this regulation in if he/she reports incidents, irregularities and integrity violations.
8.8. If the Reporter is of the opinion that he/she is being disadvantaged, the Reporter can request the Investigation department of the Whistleblower Authority to conduct an investigation into the way the Reporter has been treated.
Article 8.1. All personal data processed by the Organization in the context of this regulation will be used solely to fulfill the objectives of this regulation. The personal data will only be provided to persons who require it for these purposes or to comply with a legal obligation, or to serve an important public interest.
8.2. If a report turns out to be unfounded, all personal data related to the report will be destroyed as soon as possible, unless the personal data is necessary for securing evidence in any proceedings.
8.3. If a report proves to be justified, the personal data associated with the investigation will be deleted within two (2) months after the investigation has been completed, unless disciplinary action is taken or the personal data is necessary for securing evidence in any proceedings.
8.4. If the Organization is part of a group, the personal data in a report will only be shared with other parts of the group if the report of a Suspicion of social misconduct could affect those other parts of the group. If personal data must be processed outside the European Union for this purpose, the Organization will take the necessary privacy law measures to make this possible.
This regulation will come into effect on 16-05-2019.
This regulation was approved by the Works Council on 15-05-2019.
This regulation will be made available to the persons working at the Organization in writing and/or electronically.
From the day of entry into force, Mr. K. Severijns was appointed as Reporting Officer for this regulation.