Which companies have the obligation to introduce an internal reporting channel? These are the legal entities with at least 50 employees. How this threshold of 50 employees should be calculated has now been clarified by the legislator.
Which companies have the obligation to introduce an internal reporting channel?
The obligation to establish an internal reporting channel (and procedure) lies with 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.
Certain legal entities are required to provide internal reporting channels regardless of the number of employees. These include legal entities offering financial products or services and/or are subject to terrorism financing and money-laundering legislation. There is no employment threshold for these legal entities.
Calculation of the 50-employee threshold?
The employment threshold of 50 (or more) employees must be calculated according to the average of the employees employed within the legal entity within the meaning of the legislation on social elections. Applying the rules under social elections to calculate the threshold under the Whistleblowers Act does raise some questions. For instance, there is the question of which reference period should be considered for the calculation for the Whistleblowers Act. Indeed, under the legislation on social elections, the calculation is in principle only carried out every 4 years, taking into account a reference period equal to four quarters
The legislator has now sought to provide clarity on this point. The threshold of 50 employees must be rechecked annually based on the data from the previous calendar year. The calculation must therefore be made each time on 1 January, based on the reference period of the four quarters of the previous calendar year.
This Act (containing various provisions on the economy) was published today in the Belgian State Gazette. This means that this provision will enter into force within 10 days.
Action point
Does the average employment within your company fluctuate around 50 employees and are you unsure whether the company is required to introduce an internal reporting channel (under the Whistleblowers Act)? On 1 January of each year, the count must be made (based on the 4 quarters of the previous calendar year) taking into account the rules applicable to social elections.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
