Whistleblower protection getting closer

At the beginning of October, the draft bill implementing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (the ‘Directive’) was published. The draft bill itself is not yet available, but the assumptions already indicate the direction in which the Polish legislator will be heading.

Large employers (employing at least 250 people) have until 17 December to implement whistleblower protection. It is therefore worth following the progress of legislative work in order to be well prepared for the implementation of the proposed regulations.

Scope of reports

First of all, it should be noted that Polish legislators have decided to expand the list of violations subject to reporting. Admittedly, according to the assumptions, violations of the law in the areas listed in the Directive (i.e. public procurement, services, products and financial markets, prevention of money laundering and terrorist financing, product safety, transport safety, environmental protection, radiological protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, privacy and personal data protection, network and information security), the scope of reporting will cover not only actions (or omissions) that constitute a breach of EU law (as specified in the Directive), but also Polish law.

Available reporting channels

Similar to the Directive, Polish legislation will provide for three reporting channels: internal (reporting within the company); external (reporting by state authorities) and public (disclosure of violations in the media). In principle, regardless of the method chosen by the whistleblower, they will be protected (although certain restrictions will apply to public reports).

Internal reports

Public entities, private entities employing at least 50 people, and financial institutions, regardless of their nature and number of employees, will ultimately be required to implement internal procedures for reporting violations. Smaller entities will be able to implement such solutions on a voluntary basis.

The content of the internal regulations will be based on the draft law, although the detailed solutions have not yet been specified in the published assumptions. They only indicate that the procedure should specify: the organisational units/entities responsible for receiving and processing reports, the methods for reporting violations and confirming their receipt, as well as the deadlines for the actions to be taken. It is not known how much freedom will be left to entrepreneurs in terms of ‘technical’ solutions, and to what extent they will be ‘imposed’ by the Act itself.

However, it is already clear that internal regulations in this area will be in the nature of internal labour law within the meaning of the Labour Code and will be subject to agreement with trade unions operating at the employer's premises, and in the absence of trade unions, with employee representatives.

It is worth noting, however, that the obligation to agree on the procedure may mean that it will be necessary to reach an agreement on its content with the employees. In the absence of consensus, it will be necessary to negotiate the content of the document until an agreement is reached, unless the law implementing the Directive expressly provides otherwise.

The size of the employee representation may also be relevant in this case if there are no trade unions in the company. The content of the guidelines clearly uses the plural form in this case. However, many companies have a single representative. For the implementation to be correct, it may therefore be necessary to co-opt at least one more person.

It is also worth verifying the scope of authorisation for the staff representation operating in the company. It may turn out that the agreement on the whistleblower protection procedure goes beyond the scope of this authorisation.

External channel

The Ombudsman is to be the body designated to receive and process reports from whistleblowers in accordance with the adopted guidelines. It is to this body, not the police or the public prosecutor's office, that whistleblower reports should be directed in the first instance, bypassing the internal channel or if the outcome of the internal proceedings proves unsatisfactory to the whistleblower.

Public channel

The internal and external channels will be essentially equivalent, i.e. in order to initiate proceedings before the Ombudsman, the whistleblower will not, in principle, have to exhaust the internal channel. However, this will not be the case for public disclosures. A person who does not first report internally or externally will not benefit from the protection provided for whistleblowers. However, there will also be certain exceptions to this rule.

Who is a whistleblower?

The draft law broadly defines the categories of persons who may obtain whistleblower status. These will primarily be persons employed by a company, regardless of the legal basis for their employment, i.e. employees, contractors, but also persons providing services as part of their business activities, volunteers, interns or trainees. Whistleblower status may be granted to both persons employed by the company and persons whose employment has already ceased, even those in the recruitment process, if they have obtained information about circumstances subject to reporting.

Whistleblower status may also be granted to persons employed by third parties with whom the entrepreneur maintains business relations – contractors, subcontractors or suppliers, as well as members of the company's corporate bodies, its partners and shareholders.

Scope of protection

Persons who obtain whistleblower status may not be harassed on that account, and any termination of their legal relationship will be ineffective. Furthermore, in connection with the report, it will not be possible to claim damages from the whistleblower, pursue claims for violation of personal rights, or initiate disciplinary proceedings against such a person, etc.

In turn, in the event of termination of the employment contract, the whistleblower will be entitled to claim compensation not lower than the minimum wage applicable at the time.

Any contractual provisions limiting (directly or indirectly) the right to report will be considered invalid.

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There are only two months left to implement the Directive. It is therefore to be expected that the draft law implementing it should be published soon. Given the time frame, it is worth starting preparatory work to introduce or adapt existing internal regulations to the new regulations. Once the law is passed, there may not be much time left to do so.