16 March 2015 - Silence is Golden?

Silence is Golden?

They arrive out of the blue. Authorities such as the Netherlands Competition Authority, the Tax and Customs Administration, a public prosecutor. Should your employees speak or can they remain silent?

Anyone unable to rely on a statutory right of non-disclosure (such as doctors and lawyers) will have to consider per individual case whether or not he or she must or would like to cooperate with an investigation into his or her employer. The rules on this can differ considerably depending on the kind of investigation.

 Criminal law

In the event of a criminal investigation an employee does not have the right to remain silent. In the preliminary stage, i.e. the stage preceding possible prosecution, investigating officers may contact anyone and ask them questions. Not having the right to remain silent does not, however, mean that you have to talk. An employee may remain silent. However, being alert is of the essence here as the Dutch Supreme Court has ruled that investigating officers do not have to point out to potential witnesses that they do not need to answer any questions, an obligation they must observe in their dealings with suspects.Once the Public Prosecution Service decides to prosecute, this changes. If the employee himself is accused, he may rely on the right to remain silent. However, if he is not accused but is heard as a witness, he must answer questions at hearings before the examining magistrate.

Tax authorities

The tax authorities have no statutory powers to ask the personnel of a company questions. If the tax authorities are looking for more information within a company, they should contact the managing director and not the employees. Employees can only furnish information if they choose to do so.

Regulatory authorities 

The powers of regulatory authorities such as the Netherlands Competition Authority or the Netherlands Authority for the Financial Markets are based on the General Administrative Law Act. Under this law everyone (unless he is a suspect  or able to rely on a right of non-disclosure) must cooperate with furnishing information. In other words, here people are under an obligation to speak.

Good employment practices

Obviously, companies and employees who are ‘surprised’ by requests for information are unlikely to know all these nuances and this can lead to things going wrong.An employee facing requests for information can easily end up in a difficult situation. Should you cooperate or not and what are the implications for the relationship with your employer? The fact is that an employee who voluntarily cooperates with an investigation that has negative ramifications for his or her employer is unlikely to be treated favourably by the employer.It is therefore important to give employees clear instructions that when they receive requests for information they should first discuss it with their employer.Good employment practices mean that the employer must, if necessary and at its own expense, examine what the rights and obligations are in connection with the investigation at issue and it must ensure that the employee – who has not in any way asked for this situation – is properly assisted where required.

And what not to do?

An example of bad employment practices occurred when a civil-law notary who wanted to inform an employee who had been with him for years of his right of non-disclosure in connection with an investigation by the Fiscal Intelligence and Investigation Service told him ‘You tell them that the interview is off or I will take action and you will be dismissed’. This comment led to a criminal conviction for the civil-law notary for unduly influencing a witness.