Dutch experts cite preparation as best strategy against corporate misconduct

Netherlands

Whistleblower series Netherlands

A company's best response to charges of misconduct is to ensure that systems are fully in place to both prevent and uproot any wrongdoing long before a complaint has been officially lodged, declare internal investigation experts in the Netherlands.

As logic dictates, the best response is preparation, insuring that all companies doing business in the Netherlands begin their corporate lives with the following four systems in place: a code of conduct for employees and management; an investigation regulation; a sanction regulation; and a Whistleblower Regulation, which is mandatory for firms with 50 or more employees.

What exactly are these systems?

Code of Conduct

A code of conduct is a written document that clearly defines the manner of personal and professional conduct that a company expects of its staff in the workplace. In order for such a code to be unambiguous to all, it should state precise guidelines for acceptable behavior and fully articulate the company's values and commitments.

For the sake of clarity, codes can specifically draw attention to examples of improper acts, such as discrimination, bullying, harassment, bribery and fraud.

Investigation Regulation

Precise Rules on Procedure should be put in place that can be executed the moment there is a suspension or evidence of misconduct. These procedures, which should be fully and clearly expressed to all employees, should include: how complaints should be made and the precise office or company official they should be made to; the team or committee that is mandated to review all complaints; and the possible investigative techniques to be used in response (i.e. CCTV surveillance, interviews, and data searches of documents, phones and laptops, etc.)

Just as employees should be made aware of a company's Code of Conduct and the parameters of its internal investigation protocol, they should also be made to understand that in the event of a misconduct investigation, their data (e.g. phone records, emails, internet history and usage) can be scrutinized.

For their part, companies must be aware that any internal investigation resulting in the processing of the personal data of an employee (or contractor, client, customer or any other person) must fully adhere to the EU's General Data Protection Regulation (GDPR).

Companies are also urged to cooperate with its Works Council – which by law is required for every firm made up of 50 employees or more – in drafting an investigation regulation.

Whistleblower Regulation

Aside from Codes of Conduct and the information on Investigation Regulations that a firm makes available to its staff, a firm should implement a Whistleblower Regulation when it employs 50 or more employees, and each firm should consult its Works Council when drafting this Regulation.

A Whistleblower Regulation should include how to respond in a timely fashion to any Whistleblower report, and a system must be in place to protect the identity of the Whistleblower. Efficiency is of the essence. Dutch law gives Whistleblowers the right to take their complaint to an authority outside of the workplace if a company does not respond in a timely manner to a complaint.

During and following an investigation

If a serious allegation has been made against an employee, the firm may decide to send the staff member home until the internal investigation is complete. But in these cases, firms are advised to carefully document their reasons for suspending an employee in case a court is later called upon to review the matter.

An employee charged with misconduct should be interviewed and allowed to state his case. In addition, in compliance with the law, fair practice and GDPR, he should be given the findings of the investigation and sufficient details on its scope.

Sanction Regulation

When an investigation has been concluded, companies should decide what sanction is necessary given the outcome. Responses can vary from no sanction to an official warning or even immediate dismissal for urgent cause.

Whatever course a company decides to take, it is crucial that all possible sanctions are clearly defined in company policy, communicated to all staff members and consistently enforced. This last point is crucial.

For more information on protecting your firm against internal misconduct or wrongdoing, contact your regular CMS source or local CMS experts Katja van Kranenburg-Hanspians and Fleur van Assendelft de Coningh.