The Bill on Whistleblowers in the Parliament.
On 17 April 2024 the bill on whistleblower protection prepared by the Ministry of Family, Labor and Social Policy was submitted to the Parliament. The bill is intended to implement the whistleblower protection standards as required by 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 Member States had time until 17 December 2021 to implement the Directive.
Presented below are the key whistleblower protection aspects of the bill.
The definition of whistleblower and whistleblower protection
The bill provides for legal protection of whistleblowers, i.e. individuals who report or publicly disclose information on breaches acquired in a work-based context. The legislator has pointed out that a whistleblower can be, without limitation, an employee, a temporary worker, a person working on a basis other than the employment contract, including a civil-law agreement, an entrepreneur, a proxy holder, a shareholder or partner, a member of a governing body of a legal person or an unincorporated entity, a volunteer and a paid or unpaid trainee.
Whistleblower protection consists of prohibition of retaliation including threats of retaliation and attempts of retaliation against the whistleblower. Entrepreneurs will be obliged to provide protection measures for whistleblowers and implement guarantees and procedures that ensure such protection.
The bill provides that the following forms of retaliation (without limitation) against whistleblowers are prohibited: refusal to employ, termination of employment, reduction in wages, transfer to a lower level, mobbing, discrimination or adverse treatment, passing over for or withholding of promotion, transfer of the whistleblower’s duties to another worker or suspension in the performance of employment or business duties.
The whistleblower is subject to protection from the moment of making a report or public disclosure. Importantly, the whistleblower may be subject to protection only after certain conditions have been satisfied. Namely, to enjoy the protection, the whistleblower must have reasonable grounds to believe that:
- the information to be reported or publicly disclosed is true at the time of reporting or making the public disclosure and
- it is information about a breach of law.
It should be noted that the protection afforded to whistleblowers will also be enjoyed by a person prior to the establishment of employment or other legal relationship that is the basis for work or provision of services or the performance of functions in or for a legal entity, and when the said relationship has already ceased.
The right to compensation and redress
A whistleblower against whom retaliatory actions have been taken has the right to compensation in an amount not lower than the average monthly wages in the national economy in the previous year, which is announced for pension purposes in the Official Journal of the Republic of Poland (Monitor Polski) by the Head of the Main Office of Statistics, or the right of redress.
It is also important that if a whistleblower knowingly reports or publicly discloses false information, and consequently any person suffers damage, that person is entitled to compensation or redress from the whistleblower who made such a report or public disclosure.
Making reports
A report made by a whistleblower may take the form of:
- an internal report – made in the manner provided for in the internal reporting procedure and addressed to an internal organizational unit or person authorized by a legal entity to receive internal reports;
- an external report – addressed to representatives of external authorities such as the Ombudsman or public authorities;
- a public disclosure – made available to the public through e.g. the press, the Internet or television, provided that this form of report should be made as the last resort.
The legislator also provided for the possibility of making an internal report anonymously – the procedure for handling information about breaches of law reported anonymously should be adopted internally in the organization.
Subject matter of reporting
A whistleblower’s report contains information about a breach of law. Information on breaches is the be construed as information, including a reasonable suspicion, about actual or potential breaches, which occurred or are very likely to occur in the organisation in which the reporting person has participated in recruitment or other negotiations preceding conclusion of a contract, or in which s/he works or has worked, or in another organisation with which the reporting person is or was in contact through his or her work, and about attempts to conceal such breaches.
A breach means an act or omission which is unlawful or intended to circumvent the law. It should be emphasized that the legislator included a closed list of breaches, in which measures were indicated relating to the following
- employment law,
- corruption,
- public procurement,
- services, products, financial markets,
- prevention of money laundering and terrorist financing,
- product safety and compliance,
- transport safety,
- protection of the environment,
- radiation protection and nuclear safety,
- food and feed safety,
- animal health and welfare,
- public health,
- consumer protection,
- protection of privacy and personal data,
- security of network and information systems,
- the financial interests of the Treasury of the Republic of Poland, local government units and the European Union,
- the internal market of the European Union, including breaches of Union competition and State aid rules, as well as breaches relating to the rules of corporate tax,
- constitutional freedoms and the human rights and the rights of citizen – occurring in the relations of the individual with public authorities and unrelated to the areas indicated above.
Obligations for entrepreneurs
It needs emphasizing that the whistleblower protection procedures need to be mandatorily implemented by entrepreneurs who employ at least 50 wage earners. This number is established as at 1 January or 1 July each year.
Importantly, the number of 50 people who perform paid work for a legal entity includes full-time employees or persons performing paid work on a basis other than employment, if they do not employ other persons to do such work on any basis.
The bill imposes a number of obligations on those entities that are obliged to implement the whistleblowing system, including:
- implementation of internal whistleblowing procedures,
- maintaining the register of reports,
- setting up confidential channels for receiving reports,
- appointing an entity responsible for receiving reports and conducting internal investigations,
- ensuring easy access to information about internal reports.
The internal reporting procedure
Undoubtedly, the major obligation imposed on entrepreneurs will be to develop the internal reporting procedure. This document lays down the rules for reporting breaches of law and follow-up measures, such as the investigation proceedings.
The procedure should define in particular:
- the manner of reporting breaches,
- the entity responsible for receiving the report,
- the entity authorized to take follow-up measures,
- they way to handle anonymous reports,
- the maximum time limit for providing feedback to a whistleblower.
Importantly, the procedure must be safe and easily accessible. It must also guarantee reliable verification of reports received, and provide for adequate preventive measures.
Sanctions for breaches
Failure to comply or improper compliance with the obligations imposed by the act will be subject to a fine, restriction of liberty or imprisonment up to one, two or even three years, depending on the type of breach.
Importantly, most regulations apply to entrepreneurs, thus offering greater protection to whistleblowers. However, if a whistleblower makes a report or public disclosure being aware that no breach has occurred, they will be subject to a fine, restriction of liberty or imprisonment for up to two years.
Regulations on whistleblower protection will come into force 3 months after the publication in the Journal of Laws, except for regulations on external reporting, which will come into force 6 months after the date of publication, which means that entrepreneurs do not have much time to implement the planned changes.
If you would like to know more about the whistleblower protection or you need help in implementing your internal reporting procedures, you are welcome to contact us. Andersen experts will assist you in the process of adapting to the solutions currently in
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