The Whistleblower Protection Act will soon enter into force – on 25 September 2024. The Act implements the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law (OJ EU L 305, 26.11.2019, p. 17, as amended) into Polish law and its aim is to develop procedures for making and receiving reports of breaches of law, appropriate processing of such reports and protection of persons who make such reports – whistleblowers.
Below we briefly present selected aspects of this Act which, in our opinion, will be of greatest importance to you.
Employers employing 50 or more individuals (not necessarily under an employment contract), and in the case of some entities – regardless of the number of staff, are required to develop and implement an internal reporting procedure, i.e. information on illegal or unfair practices that threaten the public good or the employer – in order to ensure the functioning of permanent, safe internal reporting channels and to implement appropriate procedures to provide whistleblowers with protection, conduct reliable explanatory proceedings and take corrective actions. An appropriate procedure can also be introduced voluntarily by any other employer – even if there is no legal obligation, but in order to ensure friendly, fair and transparent principles of operation and a positive image of the workplace on the labor market. It is possible to adopt one, unified procedure within the entire capital group.
The Act imposes the following obligations on employers covered by it:
- developing, in consultation with company trade unions or representatives of persons performing work, and implementing an appropriate procedure for internal reporting of noticed irregularities in a given organization, whereby the procedure must, on the one hand, meet the formal requirements provided for in the Act and, on the other hand, be adapted to the specific nature of the activity of a given employer and its structure; the Act specifies deadlines: 5-10 days is the deadline for conducting consultations on the draft procedure between the employer and representatives of persons performing work (company trade unions, if they operate in the workplace), and at least 7 days is the deadline for the procedure to enter into force in the workplace after it has been communicated to persons performing work in the manner adopted in the workplace;
- introducing safe and diverse options for whistleblowers to make reports – at least orally and in writing;
- ensuring protection of whistleblowers against retaliatory actions in connection with the report they made – the Act contains an extensive list of actions towards the whistleblower that cannot be motivated by the report they made – the burden of proof that there are objective grounds for such actions (e.g. termination of the contract, change in the scope of duties) lies with the employer;
- ensuring discretion – the process of receiving and handling reports must be conducted in such a way as to ensure the confidentiality of the identity of the whistleblower, the persons mentioned in the report and the report itself;
- taking appropriate actions to clarify the circumstances of the events or behaviors reported and indicated by the whistleblower as incorrect – the employer must confirm to the whistleblower (if they have provided contact details) receipt of the report within 7 days of its receipt, and then inform them of the results of the explanatory proceedings within 3 months;
- maintaining a register of notifications in accordance with the guidelines contained in the Act.
The Act provides that reports of violations may be made internally, i.e. within the organization with which the whistleblower is associated, but also externally to public authorities.
Although whistleblowers will not be obliged to exhaust the internal procedure before reporting the matter to public authorities, the adoption by the employer of transparent rules that protect whistleblowers will certainly encourage employees to use this reporting path, which will allow for the quick and efficient elimination of irregularities in the organization, without involving external bodies and the associated publicity.
The Act also provides for criminal sanctions for failure to comply with the requirements resulting from it, including failure to implement an appropriate procedure, hindering or preventing whistleblowers from making reports, taking retaliatory action against whistleblowers, disclosing the identity of a whistleblower, a person helping to make a report or a person associated with a whistleblower. Penalties will also be imposed on “false” whistleblowers – for making a report or public disclosure despite knowing that the law has not been violated. In addition, the Act provides for the possibility of seeking compensation from persons guilty of violations.