The Whistleblowing Act in Belgium: final deadline and count your employees!

On 15 December 2022, the Whistleblowing Act was published in the Belgian State Gazette (see our publication for more details). Most provisions of the Whistleblowing Act already entered into force on 15 February 2023. By that date, legal entities in the private sector with more than 250 employees had to have an internal reporting channel in place. Legal entities with more than 50 employees, but less than 250 employees had more time, however the deadline for these entities has now also arrived. As from 17 December 2023, all legal entities with more than 50 employees, but less than 250 employees are also expected to have such internal channel and procedures in place. Sanctions in case of non-compliance are serious, so be prepared.

The legislator has recently also provided more clarity as to how exactly this number of employees must be calculated. In this blogpost, we will clarify the calculation method for you.

Art. 11 of the Whistleblowing Act imposes an obligation on legal entities in the private sector with 50 or more employees to set up channels and procedures for internal reporting. The threshold of 50 employees is calculated according to the average of employees employed in the legal entity within the meaning of Article 14 of the Business Organisation Act and Article 49 of the Welfare Act, with this average being calculated as defined in Article 7, §1 of the Social Elections Act. As you can see, references to different acts are made, but what does this mean exactly?

Legal entity or technical business unit? Although each of the mentioned Acts refers to "enterprise" as a “technical business unit”, it was quickly established that the legislator did not intend to assess the threshold of 50 employees at the level of the technical business unit in this case. Indeed, the term "legal entity" is defined separately in the Whistleblowing Act, as "an organisation with or without legal personality carrying out one or more specified activities, excluding those organisations or activities covered by other specific laws relating to the protection of reporting persons". Hence, the reference to the Business Organisation Act and the Welfare Act only refers to the term "employees" and who exactly qualifies as an employee (i.e. in general, those individuals that are employed under an employment or apprenticeship contract).

When to calculate the average number of employees? To calculate the average number of employees, reference is made to the Social Elections Act, which counts the employees over a period of four trimesters preceding the date of the social elections. As social elections are only organised every four years, this reference suggested that legal entities only had to check every four years whether they had reached the threshold for establishing an internal reporting channel. There were lots of unclarity in this respect.

The legislator has now submitted a draft bill, which aims at removing any ambiguity in this respect. Indeed, this draft law now provides that the threshold of 50 employees should be checked annually on the basis of the data of the previous calendar year. 

Therefore, in terms of recurring new year’s resolutions, we suggest checking every year whether the threshold of 50 employees has been met.