Fraud, Compliance and Integrity

What we do

Matters related to compliance, integrity violations, intimidation, bullying, discrimination, fraud, and theft often cause significant unrest within an organization. Whether you are an employer or are accused of such a violation yourself, you will often face difficult questions and choices. The experienced specialists in our practice group are ready to assist. We have extensive experience with these matters, both in the business world and in the public and semi-public sectors. We oversee the entire playing field and advise on the complex balancing of interests and strategies often involved in such issues. We do this, if necessary, in close collaboration with other disciplines such as forensic investigation, criminal law, and communication consultants. If needed, we can also provide assistance in complaint procedures and legal proceedings. We can also facilitate mediation. Naturally, prevention is better than cure. Therefore, we also provide you with advice and support in the area of ​​prevention.

• Compliance (risk assessment and prevention policy)
• (Suspicions of) fraud or theft
• (Suspicions of) integrity violations, intimidation, bullying, discrimination
• Employment sanctions and dispute resolution in the context of compliance and integrity issues
• Mediations
• Complaint procedures
• Judicial proceedings

Questions regarding fraud and integrity? Please contact us.

Fraud, compliance, and integrity in employment law

Fraud and integrity issues always impact the employment relationship. A suspicion of fraud, theft, abuse of power, conflicts of interest, incorrect expense claims, or inappropriate behavior compels the employer to take action, while much is at stake for the employee involved. This page falls under our core expertise in Employment Law and therefore approaches the subject from the perspective of the employment relationship: investigation, sanctions, dismissal, protection of whistleblowers, and the applicable privacy rules. At MKB Juristen, lawyers and in-house counsel work together in mixed teams, enabling us to assist both international corporations and the local baker at the appropriate level.

Integrity investigation and factual investigation: carefully establishing the facts

Before an employer takes measures, the facts must be brought to light through an independent and thorough integrity investigation (fact-finding). The quality of that investigation is decisive: a judge will later assess whether it was conducted thoroughly, objectively, and proportionately. In doing so, we safeguard the essential safeguards:

• hearing both sides: the employee concerned is given the opportunity to respond to the findings;
• a clear research assignment and delimitation, so that the research does not expand into a fishing expedition;
• confidentiality and proper treatment of all parties involved;
• lawful gathering of evidence, including where use is made of forensic investigation or email and system data.

Acting hastily under internal pressure is unwise: it undermines the evidentiary position and increases the risk of procedural errors. At the same time, an employer should not remain inactive for too long when considering summary dismissal.

Employment sanctions: from a warning to summary dismissal

Depending on the severity of the violation and the circumstances of the case, various measures are available: a formal warning, a reprimand, suspension or placing on non-active duty, transfer, or termination of the employment contract. In the event of a serious reproach, dismissal comes into play. Dismissal without notice requires, pursuant to Articles 7:677 and 7:678 of the Dutch Civil Code, an urgent cause—such as theft, embezzlement, or fraud—that is so serious that the employer can no longer be expected to continue the employment contract. In addition, the strict requirement of immediacy applies: the termination must follow almost immediately after the employer becomes aware of the urgent cause, although a prompt investigation and obtaining legal advice are permitted. If dismissal without notice is too drastic or too risky, dissolution via the sub-district court (Article 7:669 of the Civil Code, based on culpable conduct, the e-ground) may be a more appropriate route. We carefully weigh these routes against each other; see also our page on Dismissal Law.

Whistleblowers: reporting misconduct and the prohibition against detrimental treatment

Fraud and integrity violations often come to light through an internal report. The Whistleblower Protection Act requires employers with 50 or more employees to have an internal reporting system and protects whistleblowers who report a suspected wrongdoing in good faith. This does not concern evidence, but rather a fact-based, sufficiently concrete, and serious suspicion that affects the public interest. An employer may not disadvantage a whistleblower—for example, through dismissal, transfer, or withholding of promotion—during and after the handling of the report (the prohibition against disadvantage, partly enshrined in Article 7:658c of the Dutch Civil Code). The difficulty lies in the fact that a whistleblower sometimes simultaneously violates confidentiality or privacy rules, for example by securing evidence. A disproportionate response, such as summary dismissal, may then still be unlawful. We assess in advance whether someone enjoys whistleblower protection, so that a sanction does not boomerang back.

Privacy and evidence gathering: the limits of investigation

In fraud investigations, an employer often collects personal data: emails, log files, camera footage, or bank statements. This must be done within the framework of the General Data Protection Regulation (GDPR) and employment law. Covert investigations, such as reading a business email inbox or camera surveillance, are only permitted under strict conditions of necessity, proportionality, and subsidiarity, and often only after a justified suspicion. A judge is not always required to disregard unlawfully obtained evidence, but it weakens the employer's position and can lead to liability. We therefore tailor the investigation method to what is legally defensible; see also Privacy in employment law.

Compliance and prevention: prevention is better than cure

The best integrity case is the one that never arises. We help organizations—from small businesses to listed corporations—establish workable compliance and integrity policies: a code of conduct, a confidential counsellor, a reporting scheme that complies with the Whistleblower Protection Act, clear agreements regarding confidentiality and company assets, and a sanctions policy that holds up in practice. Proper contractual anchoring—for example, in employment contracts —prevents an employer from being left empty-handed in the event of a breach. Moreover, additional integrity standards apply to the (semi-)public sector; we are at home there as well; see our page on the (semi-)public sector.

Frequently asked questions about fraud, compliance, and integrity

Am I, as an employer, allowed to dismiss someone immediately upon suspicion of fraud?
Not just like that. Summary dismissal requires an urgent reason (Articles 7:677 and 7:678 of the Dutch Civil Code) and immediate action. A suspicion is not yet an established fact; a swift integrity investigation is usually required first. A decision taken too quickly or too slowly can undermine the dismissal.

What if the employee claims to be a whistleblower?
In that case, you must first assess whether there is a report of a suspected wrongdoing within the meaning of the Whistleblower Protection Act. If so, a prohibition against detrimental treatment applies, and you may not disadvantage the employee because of the report. A sanction may then be unlawful, even if the employee violated a rule in the process.

What evidence may I use?
Evidence must be lawfully obtained within the framework of the GDPR and the requirements of necessity, proportionality, and subsidiarity. Covert investigation is only permitted under strict conditions. Unlawfully obtained evidence weakens your position and can lead to liability.

Do you also assist the employee who is accused?
Yes. We support both employers and employees. If you are accused of a breach of integrity, we ensure that the investigation is conducted thoroughly, that both sides are heard, and that any potential sanction is proportionate.

Need advice on fraud, compliance, and integrity?

Is there a suspicion of fraud or an integrity issue, or do you wish to bring your compliance policy into order? Our lawyers and in-house counsel will assist you with investigations, sanctions, whistleblowers, and prevention — within the broader framework of employment law. Please feel free to contact us for an initial assessment of your case.