Whistleblower protection law soon to take effect – we know the assumptions underlying the bill
On 4 October 2021, assumptions underlying the bill on whistleblower protection (hereinafter: the Bill) were published on the website of the Council of Ministers. The Bill is intended to implement the EU Directive on Whistleblower Protection – 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 (EU Official Journal L 2019 no 305 p. 17).
The Directive imposes an obligation to implement regulations which provide protection of persons who report breaches of the EU law. So far, the whistleblower protection in Poland has been fragmentary, and the two-year period for implementation of the Directive ends on 16 December 2021.
- When and who will be protected?
The protection will apply to those who report breaches or who disclose information or reasonable suspicions about breaches of law and who obtained such information in a work-related context. The basis and form of the work-related relationship will be of no relevance, because the protection will apply to workers (including candidates for employment, if they have become aware of breaches during recruitment, as well as former employees), contractors, trainees, interns, persons cooperating on a B2B basis or managers, as well as shareholders, stockholders, members of corporate governing bodies, suppliers and sub-suppliers (their employees or associates), etc.
Safeguards against malicious, frivolous or abusive reports is an essential mechanism, which, however, was tackled in very general terms in the Bill. For a whistleblower to be protected, it will each time be required that the reporting person has reasonable grounds to believe that the information which is reported is true.
- Whistleblower protection, that is…
The principal assumption of the Bill is to exclude the possibility of the whistleblower being punished for reporting a breach or making the so-called public disclosure. Termination of a contract with a whistleblower will be excluded. The mechanism of reverse onus will apply, which means that if the case is taken to court, it will be the entrepreneur that will have to prove that his actions were reasonable.
Additionally, making a report of a breach in good faith and in conformity with the act will block other civil-law consequences, as specifically listed in the act. The major civil-law consequences referred to above include, without limitation: protection against potential liability for damage sustained by anyone, initiation or conduct of disciplinary proceedings against the reporting person, or initiation of proceedings for slander or infringement of personal rights.
- Manner of reporting breaches
Reporting a breach should be possible through the so-called internal reporting channels established by organisations, external channels for reporting to competent state authorities (the Ombudsman) or through public disclosure.
Requirements concerning the internal reporting channels will be defined in more detail in the act. An internal procedure governing whistleblowing and follow-up measures is to have the form of an internal by-law and, as such, it will be one of the sources of the employment law. Thus, the contents thereof will be subject to arrangements with internal union organisations or consultations with worker representatives.
An essential condition in the context of setting up an internal reporting channel is the obligation to provide for anonymity of the whistleblower, which is required by the Directive, and to inform the whistleblower (also an anonymous one) about measures and actions taken in connection with the report.
- Who is obliged to establish an internal reporting channel?
The obligation to establish an internal reporting channel is to apply to all public sector entities as well as to private sector entities which employ at least 50 workers. Entities which operate in the financial sector are an exception – the above limit shall not apply to them. Such entities will be obliged to establish internal channels for reporting breaches regardless of the number of workers they employ.
For other entities, establishing internal channels for reporting breaches will not be mandatory, they will be free to establish such channels in observance of the principles provided for in the act.
Employers will be obliged to provide an appropriate organisation for receiving and verifying reports, including protection of identity of the reporting person and the person to whom the report applies. Adequate management of reports is of essence. This includes appointment of a person or a group of people who will plan the follow-up and inform whistleblowers about taking such follow-up measures. The procedure of reporting and processing reports will need to be consulted with trade unions or worker representatives.
- How much time is there?
The new law should take effect no later than by 17 December 2021. However, with respect to employers of the private sector who employ up to 249 workers, the implementation can be postponed until 17 December 2023. At the moment it is not clear whether the Polish legislator decides to use this option.
- Things we don’t know
At the moment we do not know details regarding specific requirements to be satisfied by the internal reporting channels which are to be established by entrepreneurs, or whether the act will provide for a requirement to have a dedicated employee (Compliance Officer) whose duties will consist of handling reports made by whistleblowers. We still do not know what a secure communication/notification channel will look like in practice (dedicated e-mail, hotline, external application, other), what specific information obligations the whistleblower will have to fulfill, or what follow-up actions will be taken after a report is accepted. Directive requires each subsidiary with 250 or more employees to have a separate internal channel at the local level and to give an option to report at the local or group level, we are ready to discuss specific Polish requirements when they are published in a form of the Bill.
We are still waiting for the Bill – it is hoped that it will go through the legislative path in November – so there will be very little time to implement the procedure.
If you have any questions in this respect, you are welcome to contact us.
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