There is no doubt that the topic of whistleblowers has become a topic of widespread interest. This is all due to the Directive on the protection of persons reporting breaches of EU law, adopted in 2019 by the European Parliament and the Council of the EU (hereinafter referred to as the Directive), which Poland is obligated to implement by 17 December 2021. Despite the fact that this deadline is rapidly approaching, there is currently no draft legislation implementing the EU regulations under review into Polish law.

However, before we move on to discussing the main assumptions of the so-called Whistleblower Directive, it is worth answering the question of what this concept actually means.

A whistleblower (literally "a person who blows the whistle," or colloquially a whistleblower), according to the Directive, is an individual who reports or publicly discloses information about violations in a work-related context. Importantly, this connection to work is not limited only to an ongoing employment relationship, but also to one that has ended or is about to be established, as well as activities performed as part of cooperation as contractors, subcontractors, suppliers, or partners. Therefore, "whistleblowing" occurs wherever a formal organizational structure exists, in all sectors, in both private and public institutions.

Unfortunately, due to the historical context and its contemporary implications, whistleblowers in Poland evoke negative associations, being identified with informers or informants. This is very unfair, because without whistleblowers, many abuses would never have come to light. It should be emphasized that "whistleblowing" is based on good faith actions aimed at exposing attitudes that are inconsistent with the law or the rules prevailing in a given place. A whistleblower is not a person who knowingly discloses circumstances that are not true, or an employee acting in bad faith.

Those who disclose irregularities related to non-compliance with the law and ethical standards in the workplace obviously risk negative retaliation from their employers. Therefore, to ensure protection against potential retaliatory actions, all member states will be required to introduce appropriate legal regulations in this area from 17 December 2021.

The question therefore arises: what changes should be expected after December 17, 2021, and which entities will be obliged to implement the new obligations?

All legal entities employing at least 50 employees, regardless of whether they are in the public or private sector, will be required to implement the directive. It's worth noting that entities employing 50 to 249 employees will have slightly more time to implement these obligations than businesses employing 250 or more, who will have to comply with the directive's requirements as early as December of this year. For these smaller entities, the deadline for implementing the provisions expires on December 17, 2023.

The changes introduced by the Directive will require employers to:

• creating internal, secure and confidential reporting channels for whistleblowers,
• providing employees with information on how to report violations occurring within a given entity,
• taking action to clarify and provide feedback to the whistleblower, both on the receipt of the report and on the actions taken or planned, along with the justification,
• indication of persons responsible for verifying applications.

Furthermore, each entity covered by the Directive will be required to establish procedures to protect whistleblowers from having their identity revealed. Therefore, the onus will be on the business to develop a reporting procedure and an organizational culture based on trust that ensures whistleblower anonymity is not merely illusory, but actually works in practice.

Under the Directive, employers will not be able to take any retaliatory action against anyone who reports misconduct, such as suspending an employee's rights, demoting them, reducing their salary, or even dismissing them. A whistleblower cannot be held liable for breach of confidentiality, defamation, infringement of the employer's personal rights, or breach of trade secrets for reporting misconduct.

Importantly, the Directive provides legal protection not only to the whistleblower, but also to his family members and other persons economically or factually linked to him, if they are at risk of negative consequences in connection with the report.

The Whistleblower Directive brings with it a number of changes, the implementation of which will undoubtedly require significant commitment on the part of employers.

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

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