The Whistleblower Protection Act, which has been in the works since 2021, comes into force on September 25. This act is a direct implementation of the Directive of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of EU law.
What effects will the entry into force of the above-mentioned act bring and what does it mean for entrepreneurs?
At the outset, it's important to emphasize two key issues. The first is that the Whistleblower Protection Act makes the obligation to implement internal procedures dependent on the number of people employed at a given company, setting the minimum threshold at 50. It's worth emphasizing that we're not just talking about employment based on an employment contract, but about any form of paid employment—even interns—are included in the "pool."
The second starting point is that while the implementation of an internal procedure for whistleblower protection in companies employing fewer than 50 people remains optional , the implementation of appropriate procedures should be considered beneficial, giving credibility to a given company both in the perception of contractors and, for example, by banks, analysing the correct functioning of the company before granting it financing.
The issue of whistleblower protection – and the implementation of appropriate procedures provided for in the Act – should therefore remain important for all entrepreneurs employing employees, regardless of their number.
Who is a whistleblower?
A whistleblower is an individual who reports or discloses information about a violation of the law—obtained in a work-related context. This covers a wide range of collaborations, as a whistleblower can be not only an employee but also: a temporary worker, a person performing work under a basis other than an employment relationship, an entrepreneur, a proxy, a shareholder or partner, a member of a governing body of a legal entity or an organizational unit without legal personality, a person performing work under the supervision and direction of a contractor, subcontractor, or supplier, an intern, a volunteer, or even an apprentice.
Importantly, a whistleblower may be a natural person who has not yet entered into an employment relationship (or other legal relationship constituting the basis for the provision of services!).
A whistleblower can report all violations, meaning acts or omissions that are unlawful or intended to circumvent the law in a work-related context. Reports can cover many areas. A detailed list (it's worth noting that this is a closed list, but covers a very broad spectrum) can be found in the Act.
Protection of whistleblowers
What remains crucial regarding the Whistleblower Protection Act is that a whistleblower is protected from retaliatory actions from the moment of reporting, as described in the dedicated procedure, or from the moment of public disclosure. The moment of reporting is defined as the moment the whistleblower provides information about violations, i.e., the moment the designated person can review it.
Whistleblower protection does not expire – it continues throughout the period in which retaliatory action may be taken against them. There is no basis for recognizing any time limit.
The Whistleblower Protection Act provides for three forms of reporting:
- internal notification – as part of internal procedures that entrepreneurs are obliged to implement;
- external reporting – bypassing internal procedures – directly to the Commissioner for Human Rights or the relevant public administration body;
- Public disclosure – after a prior internal or external report. This refers to disclosing information, for example, in the press, on radio, on social media, etc. In exceptional cases, a whistleblower may make a public disclosure without prior internal or external reporting.
Prohibition of retaliation
Retaliation is a direct or indirect act or omission in a work-related context that is prompted by a report or public disclosure and that violates or is likely to violate the rights of a whistleblower or causes or is likely to cause unjustified harm to the whistleblower, including unjustified initiation of proceedings against the whistleblower.
It is worth emphasizing that the use of retaliatory actions is equivalent to attempting to use them or threatening to use them – and these actions also remain prohibited.
The Whistleblower Protection Act contains a non-exhaustive list of retaliatory actions. However, it is worth reviewing these examples to understand the specifics of whistleblower protection – in the case of those employed under an employment contract. Retaliatory actions include: refusal to enter into an employment relationship, termination of an employment relationship or termination without notice, failure to enter into a fixed-term or indefinite-term employment contract after the termination of a trial period employment contract, failure to enter into a subsequent fixed-term or indefinite-term employment contract after the termination of a fixed-term employment contract (when the whistleblower reasonably believed such a contract would be entered into), reduction in salary, suspension of promotion or omission from promotion, omission from the granting of work-related benefits other than salary (or reduction in the amount of such benefits), transfer to a lower position, coercion, intimidation, or exclusion, discrimination, unfair treatment, causing non-pecuniary damage, including infringement of the whistleblower's personal rights – and many, many others.
A whistleblower against whom retaliatory actions have been committed has the right to compensation in an amount not lower than the average monthly salary in the national economy in the previous year, published for pension purposes in the Official Journal of the Republic of Poland "Monitor Polski" by the President of the Central Statistical Office, or the right to redress.
What if the procedures required by the Whistleblower Protection Act are not implemented?
Pursuant to Article 58 of the Whistleblower Protection Act, failure to implement the internal reporting procedure may result in the imposition of a fine on the obligated party.
However, the above is not the only criminal offence that may occur in the event of failure to comply with the obligations imposed by the Whistleblower Protection Act.
Retaliation against a whistleblower is punishable by a fine, restriction of liberty, or imprisonment for up to two years (or up to three years if the retaliation is persistent). Preventing or hindering a potential whistleblower from reporting a violation is punishable by a fine, restriction of liberty, or imprisonment for up to one year.
If the obstruction or disruption is accompanied by the use of violence, threats or other types of deception, the perpetrator may be subject to a prison sentence of up to 3 years.
The criminal provisions of the Whistleblower Protection Act do not apply solely to entrepreneurs. In cases where a person knowingly misleads others by reporting or publicly disclosing events that do not actually occur, they may be subject to a fine, restriction of liberty, or imprisonment for up to two years.
So, will September 25, the effective date of the Whistleblower Protection Act, bring drastic changes to the operational organization of individual businesses? This depends on the businesses themselves and the manner in which they implement the procedures required by the Act. It is crucial that the content of the implemented procedures is tailored to the specific needs of the business – hence the importance of paying careful attention to the implementation of the procedures required by the Act or entrusting this matter to professional representatives specializing in the implementation of whistleblower protection procedures.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of September 4, 2024
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