Whistleblower: clarification regarding the calculation of the required number of employees

An internal reporting channel is mandatory in legal entities in the private sector employing at least 50 employees.

A law of 9.2.2024 clarifies the calculation modalities of this threshold.

Internal reporting channel: brief overview

The internal reporting channel allows employees who have acquired information on breaches in a work-related context to report them, i.e. to whistleblow.

This channel can be managed internally or made available externally. 

The employees (representatives) must be consulted on this matter in advance.

Calculation of the number of employees employed

Legal entities in the private sector employing at least 50 employees are required to set up an internal reporting channel.

The reference period over which this threshold should be calculated has raised many questions.

The law of 9.2.2024 addresses this by clarifying the method and frequency of calculating the number of employees.

In practice, to determine if your legal entity reaches the threshold of 50 employees, you must calculate your number of employees:

• according to the same rules as those applicable for calculating the thresholds required in the context of social elections (average of the employees employed); however, temporary agency workers may not be taken into account;
• each year, on 1st January, based on the data of the 4 quarters of the previous calendar year (= reference period).

These calculation modalities will enter into force on 31.3.2024.

Therefore, the year 2024 serves as the reference period for the calculation to be carried out on 1st January 2025.

Sources: law of 9.2.2024 containing various provisions on economy (art. 199), Belgian Official Gazette 21.3.2024; law of 28 November 2022 on the protection of persons who report breaches of Union or national law established within a legal entity in the private sector.