Whistleblowers – changes to the bill
On Wednesday, March 6, following heated consultations, a new bill implementing the EU’s whistleblower protection directive was published on the website of the Government Legislation Center. This time, the bill is entitled “Whistleblower Protection Law”, which is a significant and much-awaited change. However, it is not only the title or nomenclature that has changed. Presented below are the most significant changes.
Extended scope of notifications
The new bill expands the list of breaches of the law that can be reported by a whistleblower. The previous list was extended to include breaches involving:
- human rights and civil liberties;
- corruption;
- human trafficking;
- labor law.
Particularly important is the fact that employment law-related reports are to be covered by the whistleblower protection system. Moreover, according to the explanatory statement for the bill, “labor law” must not be limited to the Labor Code, but it must be understood as including other laws and regulations, as well as intra-company bylaws. Thus, potentially, reports can be made regarding violations of work regulations, working hours, pay regulations or, last but not least – behaviors which involve mobbing or discrimination.
Minimal compensation for retaliatory actions
A whistleblower against whom retaliatory actions have been taken (including attempted or threatened retaliation!) will be entitled to compensation in an amount not lower than twelve times the average monthly salary in the national economy in the previous year, which is currently more than 80 thousand zlotys. The upper limit of the compensation has not been specified, and, in addition, the whistleblower will be entitled to demand damages (on top of the compensation).
As in previous versions of the bill, the list of behaviors that can constitute retaliatory actions is open. Moreover, it is the employer that bears the burden of proof that a given behavior is not retaliation.
Thus, it can be expected that the processes for making decisions on promotions, dismissals, bonuses or transfers of employees will need to be carefully documented, as the employer must be ready to prove that a given action was not aimed against the whistleblower (was not linked with a report).
Verification of headcount twice a year
Internal reporting regulations will be mandatory for those entities which, as of January 1 or July 1 of a given year, employ at least 50 wage earners. The number of 50 wage earners will include FTEs and persons who are personally employed on a basis other than a contract of employment. Thus, this number will include self-employed staff, but it will not include subcontractors who provide services for the company using their own personnel.
What is new is the necessity to verify the number of employees twice a year (in January and July). What remains unknown is when an entrepreneur who on July 1 of a given year reached the number of 50 employees should implement the procedure of internal reports – this issue will, in our opinion, need to be clarified.
Other changes
The new proposal of the Whistleblower Protection Law also includes the possibility for whistleblowers to make anonymous reports. The disclosure of their personal data to persons other than those authorized to act on behalf of the employer within the scope of the internal procedure can only be made with the express consent of the whistleblower. Thus, the bill provides that the employer may decide to accept anonymous reports, and this must be regulated in the internal reporting procedure.
The bill still provides for the possibility of using third parties to receive reports, take follow-up measures and provide feedback, but an agreement is required that would specify the rights and obligations related to protection of personal data, as well as technical and organizational solutions to ensure compliance with the law.
Vacatio legis
The vacatio legis period has also been changed. Currently, the bill stipulates that this period will be 3 months. This will be the time for implementation of the internal report procedure.
We realize that this period is short, so we recommend taking steps to design the required process in your organization. The Ombudsman who is responsible for receiving external reports has been afforded more time: in this case, the authors of the bill have opted for a longer vacatio legis, which is 6 months.
Should you have any questions or doubts, you are welcome to contact us.
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