On Tuesday, April 2, 2024, the Council of Ministers adopted a draft Whistleblower Protection Act, which aims to implement into the national legal system the so-called Whistleblower Protection Directive (Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019, on the protection of persons who report breaches of Union law). The draft will now be submitted to the Sejm. In this article, we will discuss whether the act applies to your company, when it will come into effect, and how employers should prepare for its implementation.
Who is a Whistleblower?
According to the draft act, a whistleblower is a person who reports or publicly discloses information about a breach of law obtained in a work-related context. A whistleblower may be an employee (regardless of the type of employment contract), an entrepreneur, a partner, a member of a corporate body, an intern, a volunteer, or even a trainee, regardless of whether the legal relationship between them and the legal entity is yet to be established, currently exists, or has already ended.
The proposed act is intended to provide protection to whistleblowers who report breaches.
What Violations Can a Whistleblower Report?
A breach of law refers to any information, including a reasonable suspicion, concerning an actual or potential violation of the law that has occurred or is likely to occur within a legal entity.
Breaches that may be reported by a whistleblower include acts or omissions that are unlawful or intended to circumvent the law in several areas specified in the act, such as labor law, corruption, public procurement, financial services, products and markets, consumer protection, and the protection of privacy and personal data.
Who is Subject to the Whistleblower Protection Act?
The provisions concerning external reports apply to legal entities that, as of January 1 or July 1 of a given year, employ at least 50 people.
The count of 50 persons performing paid work for a legal entity includes employees converted into full-time equivalents and individuals providing paid work on a basis other than an employment contract, provided that they do not employ other persons for this type of work, regardless of the form of employment. However, this threshold does not apply to legal entities operating in financial services, products and markets, anti-money laundering and counter-terrorist financing, transport security, or environmental protection.
A legal entity with fewer than 50 employees may also establish an internal reporting procedure, but it is not legally required to do so.
What Are the Employer’s Obligations Regarding Whistleblower Protection?
A legal entity covered by the act must establish an internal procedure for reporting breaches of the law and taking follow-up actions, referred to as the “internal reporting procedure.”
The internal reporting procedure must be established following mandatory consultations with trade unions or employee representatives if no trade union operates within the employer’s organization.
Consultations must last no less than 5 days and no more than 10 days from the date the draft procedure is presented. The internal reporting procedure comes into effect 7 days after it is made known to employees in the manner customary within the legal entity.
Importantly, the employer is also obligated to provide information about the internal reporting procedure to job applicants at the beginning of the recruitment process or during pre-contract negotiations.
What Should the Internal Reporting Procedure Include?
The internal reporting procedure should specify:
- The unit or person authorized by the legal entity to receive reports of breaches,
- The methods by which a whistleblower may submit a report,
- A neutral unit or person responsible for taking follow-up actions, including verifying the internal report and maintaining communication with the whistleblower,
- The procedure for handling anonymously submitted reports of breaches.
The whistleblower must be able to submit reports at least orally or in writing.
When Will the Whistleblower Protection Act Take Effect?
According to the draft, the Whistleblower Protection Act is set to take effect 3 months after the date of its publication (except for Article 25(1)(8) and the provisions in Chapter 4 on external reporting, which will take effect 6 months after publication).
This means that from the date of publication, employers will have 3 months to adjust their internal procedures to meet the new requirements.
We will keep you informed about the progress of the legislative process and any potential changes to the act.
