Another version of the draft act on the protection of persons reporting violations of the law, i.e. the so-called whistleblower act (hereinafter referred to as the " draft "), has appeared on the website of the Government Legislation Centre.
Below we present the most important changes introduced to the project.
According to the new version of the project, the implementation of the obligations arising from the Act in the scope of implementation and use of the internal reporting channel will rest with private and public entities for which at least 50 people , and not, as originally assumed in the project – at least 50 employees .
The definition of "employee" has disappeared from the new draft's glossary. This indicates that the act's scope will cover not only entities employing workers within the meaning of Article 2 of the Act of 26 June 1974 – the Labor Code, and temporary workers within the meaning of Article 2 item 2 of the Act of 9 July 2003 on the Employment of Temporary Workers, but also individuals providing work on a basis other than an employment contract. The draft also does not use the term "employer." Instead, the drafter uses the term "legal entity."
In the case of public entities, the requirements of the Act will not apply to offices or organizational units of municipalities with fewer than 10,000 inhabitants.
Entities covered by the Act will be obliged to create and implement a procedure for reporting violations of the law and taking follow-up actions (the original version referred to regulations ).
The list of persons reporting or publicly disclosing information about violations of the law has been expanded to include, among others, trainees, officers and professional soldiers.
The new version of the bill adds the following area to the list of violations of law: "financial interests of the State Treasury of the Republic of Poland and the European Union." Importantly, unlike the original version of the bill, legal entities will also be able to establish reporting of violations of their internal regulations or ethical standards.
The list of retaliatory actions has also been amended. In addition to the actions listed in the original version of the bill, it will no longer be possible to take actions against a reporting person that involve causing other non-material harm, including reputational damage, especially on social media, or taking actions aimed at hindering future employment in a given sector or industry.
Regarding reporting channels for violations of the law, the new draft only allows for electronic channels . The provisions regarding anonymous reporting have also been changed. The provision allowing employers or public bodies to choose whether to review reports submitted anonymously has been removed. However, in my opinion, the proposed change does not prohibit the submission and subsequent review of anonymous reports, as evidenced by the provisions providing protection for anonymous whistleblowers whose identities are disclosed.
Importantly, the retention period for data in the internal reporting register has been shortened from 5 years to 12 months. Provisions have also been added under which whistleblowers can request the discontinuation of various burdensome proceedings brought against them in connection with their reporting.
The draft law under review introduces changes to sanctions, lowering the upper limit of the statutory penalty in some cases. For example, violating confidentiality rules is punishable by up to one year in prison. Failure to implement internal procedures, on the other hand, is punishable by a fine of up to 5,000 PLN, instead of up to three years in prison as in the original version.
Finally, some good news for entities that haven't yet implemented the appropriate procedures. The proposed law significantly extends the vacatio legis period from 14 days to two months, adding an additional month for implementing internal and external reporting channels. For a total of three months from the law's publication.
In turn, private entities employing 50 to 249 people are obliged to implement the procedure by December 17, 2023.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of April 19, 2022
author:
