Whistleblowers – work on the bill is accelerating
On Friday, 11 January, the Government Legislative Centre published a bill on whistleblower protection. The ruling coalition informs that the work on the bill is going to speed up because Poland is more than 2 years late in adopting the legislation in this regard. It can be expected that the act will be passed in the second quarter of 2024.
Whistleblower protection
The act is to implement the EU directive on protection of whistleblowers, i.e. people who report law breaches in employment. Within the meaning of the bill, each employee, temporary employee, person hired under a civil law contract, entrepreneur, shareholder or partner, member of corporate governing bodies (management boards and supervisory boards), trainee, volunteer or apprentice can be a whistleblower.
The most important aspect of whistleblower protection is a prohibition of retaliation, i.e. direct or indirect acts or omissions that may cause harm to the whistleblower because of their reporting (such as disregarding them in the process of awarding bonuses, withholding of promotion, termination of employment contracts, reduction of wages, or a negative performance assessment).
The bill, in line with the directive, indicates that a whistleblower may report a breach of law by:
- internal reporting – to the organization in which they work or with which they cooperate,
- external reporting – to a public authority, for example an Ombudsman,
- public disclosure – e.g. through work, however, whistleblowers will only be protected if they had previously reported the breach internally or externally, which proved ineffective.
Major assumptions of the bill
Organizations (including entrepreneurs, public institutions, local government units) which employ minimum 50 people (also under B2B and civil law contracts) will need to implement an internal whistleblowing and follow-up procedure. It will be optional for smaller entities.
- Breaches must apply to specified areas of law, namely: public procurement; financial services, products and 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, and security of network and information systems; financial interests of the Treasury of the Republic of Poland, a local government unit and the European Union; the internal market of the European Union, including breaches of the public law rules of competition and State aid rules, as well as rules of corporate tax, but organizations can also decide that the reporting system applies to internal bylaws or ethical standards.
- A whistleblower shall qualify for protection if they had reasonable grounds to believe that the information on breaches reported was true at the time of reporting and that such information was information on a breach of the law. Protection will also apply to facilitators and relatives of the whistleblower (e.g. their family members).
The internal whistleblowing procedure will need to include:
- Identification of an internal department or a person or a third party competent to receive reports;
- Indication of the manner in which reporting is to be made (e.g. orally, in writing, electronically);
- Designation of an impartial person or department in the entrepreneur’s organization competent for following-up on the reports and verification thereof;
- Obligation to acknowledge receipt of a report within 7 days;
- Obligation to follow-up on the report and provide feedback to the reporting person within 3 months of receipt of the report;
- Information on external reporting (to an Ombudsman).
- A mandatory reporting channel is to enable whistleblowers to make oral or written reports. Oral reports may include reports by phone, but in this case the bill provides for a number of requirements regarding recording and transcription. Written reports may be made in paper or electronic form.
- The register of reports must be maintained by each organization that has an internal whistleblowing procedure in place, and the registered data shall be retained for 3 years.
- Ensuring confidentiality of report-related information, including the register, the fact of reporting, the content of a report and – most importantly – the reporting person’s identity, will be the major responsibility of each organization and will also pose the greatest challenge.
- Establishing the whistleblowing procedure will require consultations with a trade union or workers’ representative which is to take at least 5 and no longer than 10 days.
- The major differences compared with the previous regulations consist of the fact that it is the Ombudsman (in place of the State Labor Inspection) that is the public authority dedicated to receive external reports (in addition to specialized authorities that can also be contacted, such as the Personal Data Protection Authority or Consumer and Competition Protection Authority), and additionally the act also applies to officers of the Police, Internal Security Agency (ABW), Intelligence Agency, Military Counterintelligence Service, Military Intelligence Service, Central Anti-Corruption Authority and other services.
When can the act take effect?
The bill provides that the act will take effect 1 month after its promulgation, and organizations will have 1 month from the effective date of the act to establish the internal reporting procedure. This means that entrepreneurs, public authorities, local government authorities and other organizations will have 2 months from promulgation of the act for preparation of procedures, structures and for implementation of whistleblower protection.
Should you have any questions or doubts, you are welcome to contact us.
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