Court of Appeal ‘s-Hertogenbosch, 10 October 2024, ECLI:NL:GHSHE:2024:3166.
A caregiver working at a nursing home in Sittard was wrongfully summarily dismissed. Unlike the District Court Limburg, the Court of Appeal ruled that the employee was in fact a whistleblower and was therefore entitled to protection against dismissal.
Facts
At the nursing home where the employee worked as a caregiver, a resident was to be allowed to “waste away” by no longer being given food or drink. Since this was against the resident’s wishes, the employee refused to cooperate. He reported this internally to his employer and externally to Veilig Thuis (the Dutch domestic-violence and child-abuse reporting body).
To gather evidence, the employee looked into the resident’s electronic patient file on several occasions and emailed some of the documents to himself, even though he was no longer her assigned caregiver at the time. For this reason, his employer summarily dismissed him. The employee disagreed with the dismissal and invoked the Whistleblower Protection Act. The district court ruled that the summary dismissal had been rightly given. The employee appealed against this decision.
Ruling of the Court of Appeal
According to the Court of Appeal, the employee had breached medical confidentiality by looking into the resident’s file and emailing some of the documents to himself. Nevertheless, the Court found this understandable and ruled that the summary dismissal was unjustified. The employee was a whistleblower because he suspected that a criminal offence was being committed. The employer, for its part, had failed to comply with its own whistleblower policy.
Conclusion
According to the Court of Appeal, the employer had no urgent reason to summarily dismiss the employee. He had indeed broken the rules, but not out of personal gain or curiosity – only out of concern for the resident. The employer was therefore ordered to pay the employee fair compensation of €10,000 and further compensation of almost €15,000. The employer was also ordered to pay the legal costs.
The Whistleblower Protection Act has been tightened and requires adjustments within your organisation if you employ at least 50 people. Wondering what these changes mean for you, or do you have questions about this Act? Please feel free to contact one of our employment lawyers, without obligation.
Click here for the full ruling (in Dutch).
