Due to the changes made to the draft "Whistleblower Act", it is necessary to once again analyse and summarise the obligations imposed on the employer under this Act.
According to the second version of the draft law on the protection of persons reporting violations of the law, published on April 12, 2022, on the Government Legislation Center website, significant changes regarding the actions required by employers concern several areas. Under the previous draft, the obligation to implement appropriate reporting procedures and whistleblower protection applied to entities employing at least 50 employees. The new draft assumes that this obligation will be imposed on legal entities employing at least 50 people. Offices or organizational units of municipalities with fewer than 10,000 residents will be exempt from the obligation to establish an internal procedure for reporting violations of the law and taking follow-up action. Employers remain obligated to prepare and implement internal procedures regulating the procedure for reporting violations of the law.
The procedure should define five key elements: 1) how to submit a report, 2) who receives the reports, 3) who takes follow-up action, 4) what the acknowledgment of receipt looks like, and 5) how feedback is provided to the whistleblower. Failure by an employer to implement an internal procedure is punishable by a fine of up to PLN 5,000. Employers remain obligated to acknowledge receipt of a report within seven days of its receipt and provide feedback to whistleblowers within the following three months. The new draft law clarifies the employer's obligation to establish various channels for reporting internal and external violations. The current oral and paper forms have been supplemented with electronic formats.
The provisions regulating the acceptance of oral reports have also been amended, allowing them to be submitted directly or indirectly, via a recorded or unrecorded telephone line or other voice communication system. It is also important for employers to shorten the retention period for internal reporting data – from the current period of 5 years to 12 months from the date of completion of follow-up. Employers should protect whistleblowers not only against retaliatory actions, as the current draft law envisaged, but also against attempts or threats of such actions. The list of prohibited retaliatory actions has been expanded to include: causing financial loss, including economic loss or loss of income, causing other non-material damage, including damage to reputation, especially on social media, harassment, discrimination, and unfavorable or unfair treatment.
A number of sanctions have been relaxed under the latest draft law. If an employer fails to implement an internal procedure for reporting and taking follow-up action, or if a procedure is established that violates the law, they are subject to a fine only.
Sanctions have also changed for:
- taking retaliatory actions, where, according to the current version of the draft, such conduct is to be punishable by a fine, restriction of liberty or imprisonment for up to 2 years, and in a situation where more than two retaliatory actions are taken together, imprisonment for up to 3 years;
- obstructing or attempting to obstruct the submission of a report - which is to be punishable by a fine or restriction of liberty, while the use of violence, threats or deceit will additionally be punishable by imprisonment for up to 2 years;
- Violation of the obligation to maintain the confidentiality of the whistleblower's identity, which is punishable by a fine, restriction of liberty, or imprisonment for up to one year. This sanction also includes violating the confidentiality of the identity of the person who assisted in submitting the report and anyone associated with the reporting person.
The previous draft law uniformly provided for a fine, restriction of liberty or imprisonment of up to 3 years for each of the above-mentioned violations.
The bill is currently undergoing public consultations. Its final form and shape remain a mystery. From a business perspective, extending the vacatio legis period to two months is crucial. Given that employers will be required to implement new regulations (including the obligation to conduct time-bound internal consultations with trade union representatives or works councils within one month of the bill's entry into force), employers will have a total of three months to fulfill their obligations under the bill.
Legal status as of June 28, 2022
This article is for informational purposes only and does not constitute legal advice.
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