The Whistleblower Protection Act is coming. What should employers be aware of?
On 18 October 2021, the Polish government published a draft bill on protecting whistleblowers that aims to implement 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 ("Directive 2019/1937"). The deadline for the new legislation to enter into force is 17 December 2021. What new obligations will this law introduce?
The purpose of Directive 2019/1937 is to improve the enforcement of European Union law and policies by introducing common minimum rules providingprotection to persons reporting breaches of law. The Directive establishes rules and procedures to protect the so-called "whistleblowers," i.e., persons who report information about violations of law obtained in the course of their professional activities. The scope of the Directive covers whistleblowing in a number of areas, such as public procurement, financial services, prevention of money laundering and terrorist financing, product safety and transport safety, environmental protection, food safety, public health, consumer protection, privacy protection or IT security, as well as reporting of breaches affecting the EU's financial interests and breaches concerning the internal market (e.g. competition and state aid rules and corporate taxation rules).
Directive 2019/1937 is a legal mecha-nism that obliges member states, including Poland, to prepare and enact laws providing protection for whistleblowers, including provisions on procedures for reporting such violations, both in the public and private sector. Currently, Polish law does not have the solutions required by the Directive that would provide systemic protection for whistleblowers. In some cases, whistleblowers will be protected, for example, under regulations prohibiting harassment or discrimination at work, but there is no comprehensive regulation covering all sectors (certain regulations currently exist in the banking sector, for example). The lack of a systemic regulation of these issues in Polish domestic law, makes it necessary for Poland to introduce a new dedicated law that will regulate these matters in such a way as to ensure the achievement of the objectives set out in Directive 2019/1937. A draft bill regarding the above mentioned issues was published on 18 of October. The proposed regulations will extend the protection to include whistleblowers working in both private and public sector. The guarantees and legal remedies that the bill introduces, will be available to whistleblowers regardless of the basis and form of their work (thus, it will also cover persons employed under civil law contracts, B2B, or as apprentices). Furthermore, the protection will also be extended to whistleblowers working for subcontractors or suppliers of a given company, as well as to corporate shareholders, partners and members of the bodies. Finally, the protection will also be guaranteed to former employees and candidates if information about the violation was obtained during the recruitment process.
The proposed act will introduce a general rule that will exclude the possibility of a whistleblower being exposed to any harm or charges for making a report. Whistleblowers will be protected against any work discrimination and their legal position will be significantly strengthened in the event of court proceedings. For example, in the case of an appeal against termination of employment, the employer will have to prove that the dismissal was not related to the whistleblower's report. Similar protection measures will also apply to persons performing workunder civil law contract. Termination of such a contract will be ineffective for a whistleblower, and the whistleblower will be able to demand compensation.Whistleblowers are also to be protected against employer's claims related to the revealed irregularities, as well as against disciplinary proceedings, allegations of defamation or infringement of personal intersts. The draft bill also provides that the provisions of employment contracts excluding or limiting the right to report, shall be invalid.
The status of a whistleblower can be obtained as a result of making a notification (internal or external) or public disclosure of information about irregularities on account that the reporting follows the principles set out in the future act. It will be necessary to follow the required procedure, i.e. in particular to make a notification using the notification channels provided for in this respect or to follow the rules for public disclosure. However, the whistleblower will have to act fairly and the whistleblowing information will have to be credible – the whistleblower should have reasonable grounds to believe that the reported information about the violation is true at the time of reporting. The whistleblower will have the right to monitor the progres of the case, i.e., to receive feedback on the follow-up actions taken, so that they can assess whether the report received an appropriate response.
According to the proposed regulations, violations of law may be reported through internal or external reporting channels as well as in the form of a public disclosure. The draft bill also determines requirements for the organization of such channels (procedures and organizational arrangements) for reporting violations as well as rules for making public disclosures.
The internal whistleblowing procedurę itself, which employers will be required to implement, will have a form of an internal labour law act. Its content will have to be agreed on with trade unions or employee representatives. The procedure will cover organizational issues, such as specifying organizational units or persons accepting whistleblowers' reports, taking follow-up actions and providing feedback to whistleblowers, ways of reporting and confirming the acceptance of reports, as well as deadlines for the actions to be taken. The employer will have to ensure proper organization of the receipt and verification of reports, including protection of confidentiality of the identity of the whistleblower and the person to whom the report pertains. The obligation to establish internal channels for reporting violations, will apply to public sector entities as well as to private sector entities employing at least 250 people (as of 17 December 2023, also to private companies employing at least 50 people). For other entities, the creation of internal channels for reporting will not be mandatory, but those entities will be able to set them up voluntarily.
The act will also regulate the procedures and organizational solutions for submitting notifications of violations of law to the relevant state authorities (the so-called "external" channels for submitting notifications), along with the obligation to verify the notifications and take subsequent actions. In principle the public body receiving such reports will be the Commissioner for Human Rights (in Polish: Rzecznik Praw Obywatelskich). The Commissioner will be responsible for providing information and support to those who report violations of law, as well as for the receipt and initial verification of reports, as well as the follow-up of cases by referring them to the public institutions competent to examine them. The institution to which the Commissioner forwards the notification will be obliged to provide the applicant with feedback, take follow-up action, and provide the Commissioner with comprehensive information on the actions taken in relation to the notification.
The act will also regulate the rules of the so-called public disclosure, i.e. making information about the infringement public. Public disclosure will entail protection if the whistleblower first reports internally (through a channel organized by the employer) and externally (to the Commissioner) or immediately reports externally, but no timely action is taken in response to the report. Exceptions will be made where the whistleblower has reasonable grounds to believe that the violation may pose an imminent or obvious threat to the public interest, or if as a result of an external report made, the whistleblower will be threatened with retaliation, or the violation is unlikely to be effectively remedied given the particular circumstances of the case. The provisions protecting whistleblowers will apply not only to violations of European Union law provided for by Directive 2019/1937, but also to all violations of law in the areas of Polish law corresponding to those listed in the Directive. In practice, this means that the scope of law violations to which the new provisions will apply will be very wide.
The new act should enter into force by 17 December 2021. However, the current pace of work does not guarantee that this deadline will be met. In fact it is likely that the new regulations will not come into force until 2022. Despite that, it is advisable that employers start preparing now to implement a whistleblowing policy in their companies and establish an internal channel for reporting violations.
Author: Jarosław Karlikowski attorney-at-law, Noerr
