The latest version of the draft law on the protection of persons reporting violations of the law has been published on the Government Legislation Centre website. The draft law is an extension of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting violations of the law. Its aim is to prevent retaliation against whistleblowers.

The definition of a whistleblower stems from Article 4 of the aforementioned draft act – and states that a whistleblower is: a natural person who reports or publicly discloses information about a violation of the law obtained in a work-related context, including to an employee, temporary worker, person providing work on a basis other than an employment relationship, entrepreneur, etc. The act defines retaliatory actions as: a direct or indirect action or omission in a work-related context, which is caused by a report or public disclosure and which violates or may violate the rights of the reporting person or causes or may cause unjustified damage to the reporting person, including unjustified initiation of proceedings against the reporting person.

The condition for being eligible for whistleblower protection is a substantiated claim that the information being reported or publicly disclosed concerns the public interest, is true at the time of reporting, and that such information constitutes information about a violation of the law. This leads to a clear conclusion: to be eligible for whistleblower protection, it is not necessary to confirm the accusations made, but rather that the whistleblower has a reasonable basis for claiming that the accusation is true .

What's crucial about this law is that not only actual retaliatory action, but also attempts or even threats of retaliation against the reporting party are prohibited. The subject of whistleblower protection is not only the whistleblower themselves, but also the person assisting them in making the report, as well as anyone associated with the reporting party .

The forms of action specified in the legal act are not exhaustive – although the act lists numerous examples. With respect to whistleblowers whose work was performed under an employment relationship, the following circumstances are listed as examples of retaliatory actions:

1. refusal to enter into an employment relationship;
2. notice of termination or termination without notice of the employment relationship;
3. failure to conclude a fixed-term employment contract or an employment contract for an indefinite period after the termination of a trial period employment contract, failure to conclude another fixed-term employment contract or failure to conclude an employment contract for an indefinite period after the termination of a fixed-term employment contract – if the employee had a reasonable expectation that such a contract would be concluded with him;
4. reduction in wages;
5. suspension of promotion or omission from promotion;
6. omission of work-related benefits other than remuneration when granting them or reduction of the amount of such benefits;
7. transferring an employee to a lower job position;
8. suspension from the performance of employment or official duties;
9. transferring the employee's current duties to another employee;
10. unfavorable change in the place of work or working time schedule;
11. negative performance evaluation or negative opinion about work;
12. imposition or application of a disciplinary measure, including a financial penalty, or a measure of a similar nature;
13. coercion, intimidation or exclusion;
14. mobbing;
15. discrimination;
16. unfavorable or unfair treatment;
17. suspension of participation or omission when selecting for participation in training to improve professional qualifications;
18. unjustified referral for medical examinations, including psychiatric examinations, unless separate provisions provide for the possibility of referring an employee to such an examination;
19. action aimed at making it more difficult to find future work in a given sector or industry on the basis of an informal or formal sectoral or industry agreement;
20. causing financial loss, including economic loss or loss of income;
21. causing other non-material damage, including infringement of personal rights, in particular the good name of the reporting person.

Importantly, the employer bears the burden of proof that the action taken is not, in fact, retaliatory. Therefore, the employer must prove that they were guided by objective and duly justified reasons for the action, which could be assessed as retaliatory. Therefore, the whistleblower only bears the burden of establishing a probable causal link between the unfavorable treatment and the reporting.

The draft provisions in Article 13 provide that if the work or service was, is or is to be provided on the basis of a legal relationship other than an employment relationship, the reporting or public disclosure by such a person cannot, in particular, constitute the basis for:

1. termination, withdrawal or dissolution without notice of a contract to which the applicant is a party, in particular concerning the sale or delivery of goods or the provision of services;
2. imposing an obligation or refusing to grant, limit or withdraw an entitlement, in particular a concession, permit or relief.

If, contrary to the prohibitions set forth above, retaliation is committed against the Whistleblower, they have the right to seek full compensation. Similarly, compensation is available to anyone who has suffered harm due to the whistleblower's intentional reporting or disclosure of false information. In such cases, the whistleblower is liable for compensation (or redress).

What is equally important – if information about irregularities is not confirmed, the disclosing person cannot bear disciplinary consequences, for damages, or for example for the protection of personal rights, provided that the reporting person had reasonable grounds to believe that reporting or public disclosure is necessary to reveal a violation of the law in accordance with the Act.

Retaliatory actions against a whistleblower may result not only in the obligation to pay compensation but also in criminal liability. The Act on the Protection of Persons Reporting Violations of the Law stipulates that those who take retaliatory actions against the person reporting a violation of the law or public disclosure (or a person assisting in making such a report, a person associated with the reporting person, as well as a legal entity or other organizational unit assisting or associated with the reporting person – in particular one owned or employed by the reporting person) are subject to a fine, restriction of liberty, or imprisonment for up to two years. Furthermore, if the person taking retaliatory actions acts "persistently" (e.g., undertakes several different types of retaliatory actions together), they are subject to imprisonment for up to three years.

When analysing the draft act, it is impossible not to notice that the proposed solutions included in the Act on the Protection of Whistleblowers contain solutions that can effectively prevent employers, broadly understood, from taking advantage of their stronger position by taking retaliatory measures against employees reporting violations of the law and provide whistleblowers with adequate protection.

Developing such effective solutions is particularly important to ensure that the introduced regulations have real, practical application and do not constitute a basis for abuse of the granted rights by both employers and persons performing work.

This article is for informational purposes only and does not constitute legal advice.

Legal status as of August 29, 2023

Mateusz Daniluk

Attorney
+48 22 856 36 60 | m.daniluk@kglegal.pl

Mateusz Grosicki

Attorney, partner
+48 506 367 109 | m.grosicki@kglegal.pl