There is no doubt that the topic of whistleblowers has now become an object of widespread interest. This is all due to the Directive on the protection of whistleblowers adopted in 2019 by the European Parliament and the Council of the EU (hereinafter the Directive), which Poland is obliged to implement by December 17, 2021. Despite the fact that this deadline is approaching inexorably, to date there is not even a draft law implementing the analyzed EU provisions into Polish law.
However, before we move on to discuss the main points of the so-called "Whistleblower Directive," it is first worth answering the question of what the term actually means.
A whistleblower (from whistleblower, literally "man blowing the whistle," and colloquially whistleblower), according to the provisions of the Directive, is an individual who reports or discloses information to the public about violations in a context related to the performance of work. Importantly, the aforementioned connection to the performance of work is not limited to an ongoing employment relationship, but also one that has ended or is yet to be established, as well as collaborative activities as contractors, subcontractors, suppliers or partners. Thus, we are dealing with "whistleblowing" wherever there is a formalized organizational structure. In all sectors, in both private and public institutions.
Unfortunately, due to the historical context and its contemporary implications, whistleblowers in Poland evoke pejorative associations, as they are identified with informers or informers. This is very unfair, because if it were not for whistleblowers, many of the abuses would not have seen the light of day. It should be emphasized that "whistleblowing" is based on a good faith action aimed at exposing attitudes that are not in compliance with the law or the rules of the place. A whistleblower is not a person who knowingly reports circumstances that do not occur in reality, or an employee acting in bad faith.
Those who disclose irregularities related to non-compliance with the law and ethical standards in the workplace, for obvious reasons, risk a negative reaction from the employer. For this reason, in order to ensure protection against possible retaliation, all member states will be required to introduce relevant regulations in this regard as of December 17, 2021.
This raises the question of what changes are to be expected after December 17, 2021, and what entities will be required to implement the new obligations?
The Directive will have to be implemented by all legal entities with at least 50 employees, regardless of whether they are in the public or private sector. At the same time, it is worth noting that entities with 50 to 249 employees will have a little more time to implement the aforementioned obligations than entrepreneurs with 250 and more employees, who will have to meet the requirements of the Directive as early as December this year. For these smaller entities, the deadline for implementation is December 17, 2023.
Changes introduced by the Directive will require employers to:
- Establish internal, secure and confidential reporting channels for whistleblower reports,
- Provide employees with information on how to report violations operating at the entity,
- to take action to clarify and provide feedback to the whistleblower, both on the acceptance of the report and on the action taken or planned, with reasons,
- Identification of persons responsible for verification of applications.
In addition, each entity covered by the Directive will be required to create procedures to ensure that a whistleblower's identity is protected from disclosure. The onus will therefore be on the entrepreneur to shape such a whistleblowing procedure and a trust-based organizational culture so that the assurance of whistleblower anonymity is not illusory, but actually works in practice.
According to the Directive, the employer will not be able to take any retaliatory action against the whistleblower, consisting, for example, of suspension of the employee's rights, demotion, reduction of salary, or even dismissal. The whistleblower, in connection with the filing of the report, will not be able to be held liable for breach of the duty of confidentiality, defamation or violation of the employer's personal rights, as well as violation of company secrets.
Importantly, the Directive's legal protection extends not only to the whistleblower, but also to members of the whistleblower's family, or other persons economically or actually associated with the whistleblower, if they are threatened with negative consequences as a result of the report.
The whistleblower directive brings with it a number of changes, the implementation of which will undoubtedly require a great deal of commitment on the part of employers.
This alert is for informational purposes and is not legal advice.
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