Which companies have the obligation to introduce an internal reporting channel for whistleblowers?

The European Whistleblower Directive was transposed into Belgian legislation end of 2022 (Act of 28 November 2022 on the protection of reporters of breaches of Union or national law established within a legal entity in the private sector). Question rises which companies have the obligation to introduce an internal reporting channel for whistleblowers? The obligation was introduced for legal entities with at least 50 employees. How should this threshold of 50 employees be calculated?

The obligation to establish an internal reporting channel (and procedure) was indeed introduced for legal entities employing at least 50 employees. In other words, legal entities in the private sector with fewer than 50 employees are not required to provide an internal reporting channel. These smaller companies can of course set up a whistleblowing channel voluntary. Please note however that certain legal entities are required to set up an internal reporting channels regardless of the number of employees. This exception is specifically foreseen for legal entities offering financial products or services and/or are subject to terrorism financing and money-laundering legislation. Hence, there is no employment threshold for the legal entities with these specific activities.

How should the threshold of 50 employees be calculated? The employment threshold of 50 (or more) employees must be calculated according to the average number of employees employed within the legal entity within the meaning of the legislation on social elections. Applying the rules provided for in the context of the social elections to calculate the threshold under the whistleblowing legislation does raise some (very relevant) questions.

For instance, there is the question of which reference period should be considered for the calculation for the whistleblowing legislation. Indeed, in the context of the social elections legislation, the calculation is in principle only carried out every 4 years, taking into account a reference period equal to four quarters. The legislator has – in the meantime – provided some clarity regarding the calculation of the threshold. Concerning the relevant reference period the legislator has clarified that the threshold of 50 employees must be rechecked annually based on the data from the previous calendar year. The calculation must therefore be done each time on the 1^st of January, based on the reference period of the four quarters of the previous calendar year.

Another question concerns the calculation at legal entity level or at technical business unit level. The obligation to set up a reporting channel in the context of the whistleblowing legislation is set at legal entity level; therefore, it can be assumed the calculation should also be checked at legal entity level (however, the legislation is not clear on this point).

Other questions are still without clear answer, such as the specific calculation – if any – for interim workers. The whistleblowing legislation does not foresee in a deviating calculation. The calculation – if any – should indeed also be done during the reference year of the previous calender year. However, another approach could be to not take the interim workers into account as the whistleblowing legislation only refers to the concept of employees.

It goes without saying that it is important to check the average number of employees employed within each legal entity to check whether or not there is a legal obligation to set up a reporting channel (and procedures in this context). In particular if the legal entity fluctuates around 50 employees. On the 1^st of January of each year, the calculations must be made (based on the 4 quarters of the previous calendar year) taking into account the rules applicable in the context of the social elections.

Autor: Hanne Cattoir, Senior Associate