Relevance of the employee headcount

That said, however, the employee headcount is important. After all, the obligations with regard to the internal reporting channels apply to all legal entities employing at least 50 employees (except for financial sector companies falling within the scope of the provisions on financial services, products and markets and/or money laundering and terrorist financing, which must always have such an internal channel). The deadline for establishing the required channels and procedures also depends on the employee headcount, as follows:

• Legal entities with between 50 and 249 employees: 17 December 2023
• Legal entities with 250 employees or more (and certain companies in the financial sector): 15 February 2023

Employee headcount method

Therefore, it is important to know how the legal entity's employee headcount is to be calculated. Unfortunately, the only guidance in this respect in the Whistleblower Act (and moreover only for the 50 employee threshold) is a reference to the employee headcount calculation method used in the Belgian legislation on social elections.

This calculation method essentially means that over a period of four consecutive quarters (the reference period) the number of calendar days "in service" of all employees as reported in the quarterly social security declarations (Dimona) is to be added up and divided by 365.

The Belgian social (i.e., works council and committee for prevention and protection at work) elections are only held every four years, in accordance with a very strict and lengthy procedure. The reference period consists of the four quarters preceding the start of the procedure. However, this particular reference period is of no use for the purposes of the Whistleblower Act.

The only sensible interpretation, in our view, is that the legal entity should at any time look back at the previous four quarters to determine its headcount at that time for the purposes of the Whistleblower Act. This interpretation has been verbally confirmed by the Federal Government Service Economy.

Examples:

In order to determine on 15 February 2023 whether that day's deadline applies (i.e., if at least 250 employees are being employed), the employee headcount is to be calculated based on the quarterly Dimona applications of Q1 through Q4 of 2022.

In order to determine on 17 December 2023 whether that day's deadline applies (i.e., if at least 50 employees are being employed), the employee headcount is to be calculated based on the quarterly Dimona applications of Q4 2022 and Q1 through Q3 of 2023.

Finally, it is worth stressing that even if the legal entity remains below the 250 employee threshold, it might be useful to put in place the channels and procedures for internal reporting well before 17 December 2023, to avoid employees having to make use of the external channel (i.e., the competent authorities) to report any issue.