Legal entities with between 50 and 249 employees must establish an internal channel to report breaches. This obligation has been in place since 17 December 2023, but it was unclear how and when the employment threshold for smaller companies must be calculated. An Act of 9 February 2024 brings clarification.
Which entities?
For legal entities in the private sector, the Act of 28 November 2022 implements the European Whistleblower Directive (Directive 2019/1937) in Belgian law. On the basis of this Act, each legal entity that employs an average of at least 50 employees must establish an internal channel through which employees can report breaches defined by the Act (see: Whistleblowing schemes: private sector status update).
How and when to calculate this threshold
The threshold is calculated on the basis of the rules for social elections. Note, however, that the calculation must be done at the level of the legal entity, and not at the level of the technical business unit.
The reference to the Social Elections Act also created confusion, especially regarding the question whether this means that the threshold must only be assessed every four years.
The Act of 9 February 2024 concerning various provisions on the economy (Belgian Official Gazette 21 March 2024) brings the necessary clarification.
On 1 January of each year, from 2025 onwards, every employer will have to check whether the threshold of 50 employees was reached during the previous calendar year
- If, on 1 January, you establish that you employed 50 employees or more on average in the preceding calendar year, you must establish an internal reporting channel.
- If, on 1 January, you establish that you employed less than 50 employees on average during the preceding calendar year, this obligation does not apply. However, you must reassess whether the threshold has been reached on 1 January of the following year.
Which obligations?
For details of the obligations under the whistleblowing regulations, please refer to our Legal Eubdate “Whistleblowing schemes for SMEs: D-day on 17 December 2023”.
Our multidisciplinary team is ready to help you in this regard. We can advise and assist you in implementing a reporting channel in your legal entity, training report handlers, etc. In case of a report, we can advise your report handler on the appropriate approach to safeguard your entity’s interests.
