ISW lecturer Laurens Buijs is demanding protection from harassment because, as a “whistleblower,” he brought up wrongdoing. Labor law professor Evert Verhulp questions this. “A wrongdoing is a bit more serious than having an open discussion about something you don’t like.”
The whistleblower regulation has been violated by the UvA, ISW lecturer Laurens Buijs believes. The university suspended him for allegedly calling colleagues “monsters” and “life-threatening,” a form of prejudice that is not possible within the whistleblower regulation, argues Buijs, who subsequently initiated summary proceedings against his university. But how much chance of success does the case have? And is Buijs a “whistleblower” at all?
According to the UvA, yes. The university appointed an external committee to investigate a “whistleblower’s report of serious institutional abuses at the Faculty of Social and Behavioral Sciences.” Specifically, those alleged abuses were about the “woke” ideology that Buijs said was being brought into the program and normalized at “breakneck speed,” threatening “academic freedom and the quality of teaching and research acutely and fundamentally.”
But labor law professor Evert Verhulp considered the case and doubted that Buijs would qualify as a whistleblower. According to Verhulp, if we look at the law, Buijs’ report does not in any way meet the requirement of an observed “wrongdoing.”
What qualifies as a “wrongdoing”? According to the Whistleblower Protection Act that Buijs refers to, there must have been a violation or danger of a violation of EU law, a (danger of a) violation of a statutory regulation, or a danger to public health. There appears to be none of that in this case, Verhulp believes.
The university’s own whistleblower regulations, which Buijs also refers to, do not appear to contain a legal basis, either, according to Verhulp. Abuse is a situation in which a social interest or an interest of the university is at stake. That can be true in many cases: in “a criminal offense, a violation of regulations, a danger to public health, safety or the environment, deliberately misinforming public bodies, wasting public money, or deliberately withholding, destroying or manipulating information about these facts" or a threat to do so. “I don’t see all of that in this case,” Verhulp said.
In short: “A wrongdoing is a bit more serious than having an open discussion about something you don’t like,” the labor law professor said. But that does not alter the fact, he continued, that the discussion Buijs brings up must be held. “In that sense, I understand Buijs.”
“Regardless of whether this is a case of whistleblowing, the university must be open to the question of whether the way we set up our education is right and does not lead to academic attrition. There must be an open discussion about that.”
Dismissal after publication of book
Whether Buijs’ summary proceedings will succeed is difficult to predict, according to Verhulp. The issue reminds him most of the case surrounding MBO teacher Paula van Manen. She wrote a book in the fall of 2019 about her bad experiences with the new, personalized education at her school.
She was suspended and later fired. This was legal, the Court of Appeal in Arnhem ruled, because there was a disrupted employment relationship. A short time later, however, the Supreme Court decided that the Court of Appeal should reassess the case, because of “a causal connection between the publication of the book and the dismissal.” As a result, freedom of expression was at stake, the Supreme Court reasoned. “Whether that interference is justified must be examined when the dismissal is reviewed,” reads the ruling.
But Verhulp says that did not make Van Manen a whistleblower. “It was simply an opinion of the employer that she did not share.”
Buijs relies on Article 8 of the UvA’s whistleblower regulations which states that someone who reports wrongdoing “may not be disadvantaged in any way in their position and enjoys legal protection.” Article 17 of the Whistleblower Protection Act has a similar tenor.
What is crucial here is that a person may not be disadvantaged as a result of the report, says Verhulp. “They may, however, be affected in their position as an employee for other valid reasons. It would be crazy if labor law no longer applied to people so long as they are reporting wrongdoing. After all, reporting wrongdoing is not a license to subsequently behave improperly as an employee.”
“But even if Buijs’s report does not allege wrongdoing, he deserves protection by virtue of the freedom of speech to which he is entitled,” Verhulp said. “So the key question in the case is whether the report falls under the whistleblower regulation, and if so, whether the report is the reason for his suspension. If the report is not covered by the whistleblower regulation, the question remains whether the harassment is an undue restriction of his freedom of speech.”
The final verdict is up to the judge. The hearing will take place on Monday, May 22, at the Amsterdam District Court. In summary proceedings, judgment usually follows two weeks after the hearing.