The provisions of the EU Whistleblower Protection Directive should be in force from December 17, 2023. However, we are still waiting for the adoption of the Whistleblower Act. Despite several draft bills, the bill has yet to be read in the Sejm. Private sector businesses employing 50 to 249 employees should implement whistleblower protection procedures by December 17, 2023.
In today's article, we will consider whether an employer has an obligation to respond to anonymous whistleblower reports.
According to recent draft laws, it will be up to the employer to decide whether to accept anonymous reports of violations of the law. It is clear that an employer who chooses not to accept anonymous reports will not consider them. However, what if the employer decides to accept reports anonymously? 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 emphasizes confidentiality.
It's important to remember that confidentiality and anonymity are key issues related to whistleblower protection. An internal procedure for reporting violations of the law may, as indicated above, allow for anonymous reporting. The 2019 Stefan Batory Foundation study, "Oppressed, admired, and... deserving of protection. Poles on whistleblowers," indicates that 36% of respondents fear that a lack of anonymity may lead to them being perceived as an informant by colleagues and superiors, and indicates that this is the main obstacle discouraging reporting. A 2021 study by ARC Rynek i Opinia commissioned by braf.tech also indicates that for 69% of respondents, the main reason for not reporting workplace irregularities is fear of professional consequences resulting from reporting.
The draft legislation and the directive itself allow for the use of various communication channels for reporting irregularities. Communication channels can be oral, written, or electronic, but each report via these channels must be thoroughly documented. There are already reporting channels on the market that not only allow for the acceptance of anonymous reports but also for the precise documentation of the report and contact with the whistleblower, including informing them of further decisions while fully maintaining their anonymity.
Without a doubt, maintaining confidentiality is key to protecting whistleblowers. Regardless of whether a report is anonymous or includes personal information, employers are obligated to maintain confidentiality. So what does confidentiality entail?
The employer may not disclose information regarding the data contained in the report, in particular data that may lead to the identification of the whistleblower, such as email address, telephone number, name, and surname. The employer is obligated to secure the reporting channel and documentation to prevent unauthorized persons from accessing them.
How to ensure the security of reporting channels?
First and foremost, it's crucial to ensure confidentiality, which should be the foundation of whistleblower protection procedures. The voluntary nature of anonymous reporting should be considered in the context of maintaining confidentiality, but also in the context of ensuring the effectiveness of implemented procedures and encouraging employees to report irregularities. Whistleblower protection procedures are intended to eliminate undesirable behavior within the organization and improve its performance.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of December 13, 2023.
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