Guide to Whistleblowing

Contributing Editors

In this new age of accountability, organisations around the globe are having to navigate a patchwork of new laws designed to protect those who expose corporate misconduct. IEL’s Guide to Whistleblowing examines what constitutes a protective disclosure, the scope of regulations across 18 countries, and the steps businesses must take to ensure compliance with them.

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Which body of rules govern the status of whistleblowers?

01. Which body of rules govern the status of whistleblowers?

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Belgium

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This guide will only focus on the private sector. The federal government is working on an Act that will transpose the EU Whistleblower Directive into Belgian legislation. It will comply with the provisions of this Directive, but also offers greater protection for whistleblowers. At the time of publication, the draft legislative proposal has not yet been submitted to the federal parliament. Therefore, this guide is based on the provisions of the draft legislative proposal.

Last updated on 01/08/2022

02. Which companies must implement a whistleblowing procedure?

02. Which companies must implement a whistleblowing procedure?

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Belgium

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All legal entities, including companies, with 50 or more employees (ie, full-time equivalents (FTEs)) will have to implement an internal reporting channel. This threshold of 50 FTEs will be calculated in the same way as the rules for social elections prescribe. This means that they will look at the average employment over a reference period.

Last updated on 01/08/2022

03. Is it possible to set up a whistleblowing procedure at a Group level, covering all subsidiaries?

03. Is it possible to set up a whistleblowing procedure at a Group level, covering all subsidiaries?

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Belgium

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Companies with less than 250 employees will be able to share an internal reporting channel. Legal entities with more than 250 employees will need to have their own internal reporting procedure. The EU Commission has confirmed in an opinion that it will not allow centralised internal reporting systems for a whole group of companies. However, that does not mean that a group cannot provide the framework and policies for the internal procedures of its subsidiaries, provided employees can make reports and receive a decent follow-up at the local entity level. It is also possible to outsource the internal reporting channel to a third party.

Last updated on 01/08/2022

04. Is there a specific sanction if whistleblowing procedures are absent within the Company?

04. Is there a specific sanction if whistleblowing procedures are absent within the Company?

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Belgium

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The absence of an internal reporting channel can be sanctioned with an administrative fine of up to 5% of the revenue of the company (legal entity) the previous year. The fine has to be proportionate, and the government will still create a system that will give more guidance to the administration regarding the amount of the fines (in a future royal decree).

Last updated on 01/08/2022

05. Are the employee representative bodies involved in the implementation of this system? 

05. Are the employee representative bodies involved in the implementation of this system? 

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Belgium

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There has to be a consultation of the social partners for the establishment of an internal reporting procedure. This means that the employer will have to consult the works council. If there is no works council (less than 100 employees), they will consult the trade union delegation. If there is no trade union delegation either, the health and safety committee can be consulted. This right to consultation does not mean that these representative bodies have a veto right or a decision power, but they have the right to give their opinion on the proposed system. Ideally, the employer will take their remarks into consideration.

Last updated on 01/08/2022

06. What are the publicity measures of the whistleblowing procedure within the company?

06. What are the publicity measures of the whistleblowing procedure within the company?

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Belgium

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The company needs to provide clear information regarding the use of the internal reporting channel. This can be done in a written policy or even in the internal work rules (but this is not necessary). The company should also inform workers about the possibility of reporting externally to the competent authorities.

Last updated on 01/08/2022

07. Should employers manage the reporting channel itself or can it be outsourced?

07. Should employers manage the reporting channel itself or can it be outsourced?

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Belgium

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The reporting channel can be outsourced to a third party (eg, to a payroll provider, compliance experts or lawyers). However, the employer will remain legally responsible for the implementation and use of the system.

Last updated on 01/08/2022

09. What precautions should be taken when setting up a whistleblowing procedure?

09. What precautions should be taken when setting up a whistleblowing procedure?

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Belgium

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Companies should draft a clear and accessible policy that outlines the procedure. The deadlines of the procedure need to be respected and the policy should clarify which situations fall under the scope of the procedure and the fact that reports will enjoy certain protections against retaliation. To implement the procedure itself, bigger companies are advised to use a digital reporting tool as it could be too complicated to use a non-digital system for a large number of employees, which could lead to errors in the procedure and missing deadlines. There are lots of tools out there, from quite simple ones to very intelligent (but also expensive) ones. The company will have to do some market research to find the tool that meets its specific needs.

Last updated on 01/08/2022

10. What types of breaches/violations are subject to whistleblowing?

10. What types of breaches/violations are subject to whistleblowing?

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Belgium

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Belgium has copied the list of the EU directive, but has expanded this with some very important domains. The breaches in the following fields of law (domains) fall under the material scope of the Whistleblower Act:

  • public procurement;
  • financial services, products and markets and the prevention of money laundering and terrorist financing;
  • product safety and compliance;
  • transport safety;
  • environmental protection;
  • radiation and nuclear safety;
  • food and feed safety, animal health and welfare;
  • public health ;
  • consumer protection;
  • protection of privacy and personal data and security of networks and information systems;
  • combating tax fraud; and
  • combating social fraud.

Compared to the EU Directive, the two last fields were added. For employers, the social fraud domain is especially interesting as this includes (non-exhaustively) all breaches of the Social Penal Code and all breaches of the statute of independent workers. The Social Penal Code provides for sanctions for breaches of almost all provisions of social law (employment law and social security law); moreover, article 1 of the Social Penal Code defines social fraud as any breach of social legislation that falls under the competence of the federal government. This means that almost all breaches of social laws will fall under the scope of the whistleblowing procedure.

Last updated on 01/08/2022

11. Are there special whistleblowing procedures applicable to specific economic sectors or professional areas?

11. Are there special whistleblowing procedures applicable to specific economic sectors or professional areas?

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Belgium

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The Act provides for an extra strict enforcement mechanism for companies active in financial services, products and markets and for rules for the prevention of money laundering and terrorist financing. So the financial and banking sector is under additional scrutiny. However, the procedures stay mostly the same.

Last updated on 01/08/2022

13. Who can be a whistleblower?

13. Who can be a whistleblower?

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Belgium

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The personal scope is very broad: it can be employees (workers); independent workers; shareholders; members of administrative, management or supervisory bodies; volunteers and interns (paid or unpaid); any person working under the supervision and direction of contractors, subcontractors and suppliers; ex-employees; or employment candidates. However, companies do not have to make their internal reporting channels accessible to persons other than their employees (the other persons can use the external system).

Last updated on 01/08/2022

14. Are there requirements to fulfil to be considered as a whistleblower?

14. Are there requirements to fulfil to be considered as a whistleblower?

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Belgium

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The reporting should happen in a work-related context (except for financial fraud). There are two main conditions for receiving protection as a whistleblower. First, the reporter needs to have a reason to believe that the reported information on infringements was correct at the time of reporting and the information has to fall within the material scope of the Act. This will be assessed in light of a person with a similar situation and knowledge and the protection will be granted even if the reported information is later proven to be wrong. Second, the whistleblower has to follow the legal procedure for internal or external reporting or disclosing information publicly.

Last updated on 01/08/2022

15. Are anonymous alerts admissible?

15. Are anonymous alerts admissible?

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Belgium

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Companies with under 250 employees can choose whether or not they will allow anonymous internal reporting. Companies with 250 or more employees will have to allow it. In any case, reporters can always anonymously report externally to the competent reporting authority.

Last updated on 01/08/2022

16. Does the whistleblower have to be a direct witness of the violation that they are whistleblowing on?

16. Does the whistleblower have to be a direct witness of the violation that they are whistleblowing on?

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Belgium

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There is no such condition.

Last updated on 01/08/2022

17. What are the terms and conditions of the whistleblowing procedure?

17. What are the terms and conditions of the whistleblowing procedure?

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Belgium

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There are two main systems of reporting, the internal reporting procedure within a legal entity and the external reporting procedure (to a competent authority).

Concerning the internal reporting channel, the company must provide a protected and confidential reporting system. This is a channel for receiving reports that, by its design, structure and management, securely protects the confidentiality of the reporter and any third party named in the report, and to which unauthorised personnel do not have access. The reporting can take place verbally, in writing or both (so companies can choose the method). If verbally, this can be by telephone, another verbal system (eg, digitally) or through a meeting (but only at the request of the reporter and within a reasonable term).

Within seven days, the reporter needs to receive confirmation of receipt of the report. Next, the company should assign a “reporting manager” or “whistleblower officer” who can act independently and who does not have a conflict of interest. Instead of one person, it can also be a team (eg, a compliance team). This person or team will lead the “investigation” regarding the reported breaches and will be responsible for the careful follow-up of the report. This careful follow-up is defined as “an action by the recipient of a report to check the accuracy of the allegations made in the report and to address the reported infringement where appropriate, including through measures such as an internal preliminary investigation, an investigation, prosecution, recovery of funds or termination of the proceedings. Within three months after the confirmation of receipt, the reporter needs to receive feedback from the reporting manager. Feedback is defined as “providing the reporter with information on the follow-up as planned or taken and on the reasons for this follow-up”.

Concerning external reporting, a reporter can report to a competent authority after the internal reporting or immediately (without reporting internally). The competent authority (it is not yet fully clear which institution this will be, but in most cases this will probably be the federal ombudsman) also has to establish an independent and autonomous reporting system. Like internal reporting, there needs to be a confirmation of receipt within seven days following the reporting and feedback within three months after this confirmation. However, the competent authority can prolong this deadline (if required) to six months. Furthermore, the competent authority has to inform the reporter of the result of its investigation (if legally possible), so the procedure does not stop per se at the moment of feedback within three or six months. The competent authority can dismiss reports if it does not consider the report to contain meaningful information (but this has to be communicated to the reporter) and it can prioritise reports concerning severe breaches.

There is also a third procedure, namely the public disclosure of the information (eg, in the press, online or in a book or magazine). Reporters who publicly disclose information in this manner will be protected by the law if they follow certain conditions. If there is indirect disclosure (after an internal or external reporting procedure), the reporter will be protected if there have been no appropriate measures taken by the company concerning the report. If there is direct disclosure (without following the internal or external procedure first), the reporter will be protected if there is an urgent or real danger to the public interest or if there is a risk of retaliation if the information is reported externally, or if an appropriate reaction is unlikely. This will be the case in specific circumstances (eg, when there is a risk that the evidence will be destroyed or when there is collusion between the competent authority and the person or entity who has breached the rules). 

Last updated on 01/08/2022

18. Is there a hierarchy between the different reporting channels?

18. Is there a hierarchy between the different reporting channels?

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Belgium

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There is a certain preference to start with an internal reporting procedure. However, the reporter does have the choice to immediately opt for external reporting and this choice does not have to be justified.

Last updated on 01/08/2022

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

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Belgium

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If the investigation of a report leads to the uncovering of severe legal breaches or crimes, there could be a duty for the employer or company to inform the authorities, but this will depend on each case.

Last updated on 01/08/2022

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

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Belgium

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Whistleblowers cannot be sanctioned if they had reasonable grounds to believe that the information on breaches they reported was true at the time of the reporting. This should be judged in light of a person in the same situation and with the same knowledge as the employee. If this is not the case, the whistleblower falls outside the scope of the protection for reporters and therefore could be sanctioned, if necessary.

Last updated on 01/08/2022

21. What are the sanctions if there is obstruction of the whistleblower?

21. What are the sanctions if there is obstruction of the whistleblower?

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Belgium

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Any obstruction of a report (by any natural or legal person) can be sanctioned by a prison sentence of between six months and three years and a fine of between 4,800 EUR and 48,000 EUR.

Last updated on 01/08/2022

22. What procedure must the whistleblower follow to receive protection?

22. What procedure must the whistleblower follow to receive protection?

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Belgium

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Please consult the conditions in question 14.

Last updated on 01/08/2022

23. What is the scope of the protection? 

23. What is the scope of the protection? 

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Belgium

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The scope of the protection is very large. There is a general prohibition against any retaliation measure against the reporter. This means that any direct or indirect act or omission arising from an internal or external report or public disclosure, which may cause unjustified harm to the reporter, is prohibited. This includes (non-exhaustively): dismissal, suspension, demotion, refusal of promotion, transfer of duties, change of place or time of work, reduction of pay, deprivation of training, negative appraisal, disciplinary action, coercion, intimidation, harassment or exclusion, discrimination, non-conversion or non-renewal of a temporary employment contract, damages (including damage to reputation or loss of income), hearing, termination of a service contract, revocation of a licence or permit and referral to psychiatric or medical care.

The legislative proposal does not provide a limited timeframe for this protection.

Any whistleblower may complain to the Federal Coordinator (part of the Federal Ombudsman) if he or she feels victimised or threatened with reprisals. The Federal Coordinator will initiate an extrajudicial procedure to verify the existence of a suspected reprisal. The burden of proof that no reprisal has occurred is on the legal entity. If there is a reasonable suspicion of retaliation, the federal coordinator will give recommendations within 20 days of receipt of a report from the head of the company. These recommendations will be addressed to the head of the legal entity to reverse the retaliation or remedy the harm. The head has 20 days to accept or reject these recommendations. If this procedure is insufficient, the reporter (supported by the competent authority) can go to the Labour Court.

Before the Labour Court, if the reporter proves that he or she has made a report or disclosure, it is presumed that the harm he or she has suffered is in retaliation to the report (the employer may prove the contrary by giving justified reasons). The reporter can claim contractual or extra-contractual damages. This can be a lump sum of 18 to 26 weeks' wages if the claimant is an employee (otherwise, the victim must prove the extent of the damage). The legislative proposal also includes a lump sum of six months' compensation or damages if the report is related to financial services or money laundering and terrorist financing. In these circumstances, the law also provides for a right to request reinstatement in the event of dismissal. If no reinstatement is granted, he or she will be awarded an additional six months' salary (including benefits) or compensation for the actual proven damage.

Last updated on 01/08/2022

24. What are the support measures attached to the status of whistleblower?

24. What are the support measures attached to the status of whistleblower?

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Belgium

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Competent authorities or the federal Institute for the protection and promotion of Human Rights can award support measures to reports, like:

  • comprehensive and independent information and advice on available remedies and procedures;
  • technical advice before any authority associated with the report;
  • legal assistance;
  • support measures;
  • financial assistance in legal proceedings; and
  • assistance with any administrative or judicial authority concerned with protection against retaliation.
Last updated on 01/08/2022

25. What are the risks for the whistleblower if there is abusive reporting or non-compliance with the procedure?

25. What are the risks for the whistleblower if there is abusive reporting or non-compliance with the procedure?

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Belgium

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In this case, the whistleblower will fall outside of the scope of the Act and thus the protection for whistleblowers. If the abusive reporting is sufficiently severe or has significant consequences, the employer could take disciplinary measures against the reporter or dismiss the reporter (even with urgent cause, if possible). Next, the company can also demand compensation for the damage caused by the abusive reporting (especially if the reporter is not an employee). In any case, it will be difficult to prove that the reporter has abused his right to report.

Last updated on 01/08/2022