Whistleblower Protection Act – a Legal Report Against the Employer?

text = “””In the list of legislative works of the Council of Ministers, there is a draft Act on the protection of persons reporting breaches of law. The aim of its adoption is to implement into Polish law the Directive of the European Parliament and of the Council (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law (OJ EU L 305 of 26.11.2019, p. 17). In connection with the new provisions, employers will be obliged to implement a special protection system for so-called whistleblowers, i.e. persons who report or publicly disclose information about a breach of law obtained in a work-related context. Some of the solutions proposed by the government raise significant controversy among entrepreneurs. This is hardly surprising, considering that failure to implement the provisions may result in personal criminal liability.

Whistleblower — who is that?

A whistleblower may be almost any person who has knowledge of a breach of law in their professional environment. The key factor is the connection between obtaining information about the breach and the work performed (or to be performed).

According to Article 4 of the draft, the act applies to a natural person who reports or publicly discloses information about a breach of law obtained in a work-related context, including:

1) an employee, including when the employment relationship has already ended,

2) a person applying for employment who obtained information about the breach of law during the recruitment process or negotiations preceding the conclusion of the contract,

3) a person performing work on a basis other than an employment relationship, including under a civil law contract,

4) an entrepreneur,

5) a shareholder or partner,

6) a member of the governing body of a legal person,

7) a person performing work under the supervision and management of a contractor, subcontractor or supplier, including under a civil law contract,

8) an intern,

9) a volunteer.

Breach of law

A breach of law is, according to Article 3 of the draft, an act or omission inconsistent with the law or intended to circumvent the law concerning:

1) public procurement;

2) services, products and financial markets;

3) prevention of money laundering and terrorist financing;

4) product safety and compliance with requirements;

5) transport safety;

6) environmental protection;

7) radiological protection and nuclear safety;

8) food and feed safety;

9) animal health and welfare;

10) public health;

11) consumer protection;

12) privacy and personal data protection;

13) security of network and information systems;

14) the financial interests of the European Union;

15) the internal market of the European Union, including competition rules, state aid and taxation of legal persons.

An employer may additionally establish reporting of other breaches than those listed above at the workplace within the employer’s internal regulations or ethical standards.

Prohibition of retaliation

The basic obligation envisaged for the employer is of a negative nature. According to Article 10 of the Act, the employer may not undertake retaliatory actions against a whistleblower reporting a breach. Such actions are defined as direct or indirect acts or omissions caused by the reporting or public disclosure which violate or may violate the rights of the reporter or cause or may cause harm to the reporter.

According to Article 11, if the work is or is to be performed under an employment relationship, the reporter may not be treated unfavourably because of the report or public disclosure.

Unfavourable treatment is particularly understood as:

1) refusal to establish an employment relationship,

2) termination or dismissal of the employment relationship without notice,

3) failure to conclude a fixed-term employment contract after termination of a probationary employment contract, failure to conclude another fixed-term employment contract or an indefinite contract after termination of a fixed-term contract — where the employee had a justified expectation of such a contract being concluded,

4) reduction of remuneration for work,

5) withholding or omission in promotion,

6) omission in granting benefits related to work other than remuneration,

7) transfer of the employee to a lower position,

8) suspension from performing employee or official duties,

9) transferring existing employee duties to another employee,

10) unfavourable change of the place of work or working time schedule,

11) negative assessment of work results or negative opinion on work,

12) imposition or application of disciplinary measures, including financial penalties or similar measures,

13) withholding or omission when nominating for participation in professional development training,

14) unjustified referral for medical examination, including psychiatric examination, if separate regulations provide for the possibility to refer an employee to such examination,

15) actions aimed at hindering future employment in a given sector or branch based on informal or formal sectoral or branch agreements.

Unfavourable treatment because of the report or public disclosure also includes threats or attempts to apply the above measures, unless the employer proves they acted on objective grounds.

Internal documentation

Another obligation for employers will be to establish an internal reporting regulation (Article 20 of the draft), specifying the internal procedure for reporting breaches of law and taking follow-up actions. Preparation of the regulation is mandatory for employers employing at least 50 employees. This number includes both employees within the meaning of the Labour Code and temporary workers under the Act on temporary employment.

The procedure for establishing the regulation includes consultations with the workplace trade union or employee representatives in the manner accepted by the employer. The document should come into force 2 weeks after being communicated to employees.

The time to prepare the regulation depends on the number of employees. Employers employing 250 or more employees, as well as public administration entities, will be obliged to implement the appropriate procedure 14 days after the law is announced (the exact date is still uncertain, although the implementation of the EU directive should take place no later than 17 December this year). The same obligation will begin to apply to entrepreneurs employing 50–249 employees already in December 2023.

Behind the employer’s back

The Act will enable whistleblowers to report irregularities also outside the procedure provided by the employer. The so-called external reporting may be made without prior internal reporting. The competent authority in this respect is to be the Ombudsman or, within their competencies, the President of the Office of Competition and Consumer Protection (UOKiK). Reporting to such an authority bypassing the internal reporting procedure shall not result in the loss of protection provided by the Act.

Criminal liability (Chapter 6 of the draft Act)

The draft provides for the possibility of criminal liability of up to 3 years, and penalises:

• obstructing the making of reports,
• undertaking retaliatory actions against persons making reports or public disclosures,
• breach of the obligation to maintain the confidentiality of the identity of the person who made the report,
• making false reports or public disclosures,
• failure to establish or improper establishment of internal reporting procedures.

As can be seen, liability may also fall on whistleblowers who provide false information. For employers, the most important sanction is the penalty for failing to establish the proper reporting procedure. Due to the short, 14-day vacatio legis of the Act and the need to introduce costly changes in the internal regulations of the workplace (including documentation and record-keeping), the issue of criminal liability raises many controversies. It is therefore worth not waiting and implementing the appropriate procedure as soon as possible, and if necessary, seeking professional legal assistance in this matter.
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