Both the draft national act on the protection of persons reporting breaches of the law and Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of the law provide for a ban on retaliation against whistleblowers.
Directive 2019/1937 defines retaliation in Article 5(11) as " a direct or indirect act or omission occurring in a work-related context which is triggered by an internal or external reporting or public disclosure and which causes or is likely to cause unjustified prejudice to the reporting person. "
The latest draft of the Act on the Protection of Persons Who Report Violations of Law contains a legal definition of retaliation in Article 2, point 2, specifying that it should be understood as "a direct or indirect act or omission in a work-related context that is caused by a report or public disclosure and that violates or is likely to violate the rights of the reporting person or causes or is likely to cause unreasonable harm to the reporting person, including initiating burdensome proceedings against the reporting person."
The draft Polish law contains in Article 11 an absolute prohibition of retaliatory actions against the reporting person, as well as attempts or threats to take such actions .
At the same time, the proposed regulations (rightly) did not introduce a closed catalogue of behaviours that are classified as retaliatory actions .
The draft act provides for the use of an exemplary indication of a relatively extensive catalogue of actions that in particular, considered retaliatory actions – these include :
- refusal to enter into an employment relationship;
- notice of termination or termination without notice of the employment relationship;
- 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 ;
- reduction in wages;
- suspension of promotion or omission from promotion;
- omission of work-related benefits other than remuneration when granting them or reduction of the amount of such benefits;
- transferring an employee to a lower job position;
- suspension from the performance of employment or official duties;
- transferring the employee's current duties to another employee;
- unfavorable change in the place of work or working time schedule,
- negative evaluation of work results or negative opinion about work,
- imposition or application of a disciplinary measure, including a financial penalty, or a measure of a similar nature;
- coercion, intimidation or exclusion;
- mobbing;
- discrimination;
- unfavorable or unfair treatment;
- suspension of participation or omission when selecting for participation in training to improve professional qualifications;
- unjustified referral for medical examinations, including psychiatric examinations, unless separate provisions provide for the possibility of referring an employee to such an examination,
- 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;
- causing financial loss, including economic loss or loss of income;
- causing other non-material damage, including damage to reputation, especially on social media.
Importantly, the employer's actions (as well as the threat or attempted retaliatory action) will not be considered retaliatory if the employer proves that they were guided by objective and duly justified reasons . Applying this legal construct is significant, as it creates a presumption that the retaliatory action taken against the whistleblower was not objectively justified . Therefore, the whistleblower is solely responsible for establishing a causal link between the unfavorable treatment and the reporting. The employer, in turn, will be responsible for demonstrating that the actions taken against the whistleblower, which could theoretically be classified as retaliatory, were based on objective and duly justified reasons other than the reporting itself .
It should be noted that, in accordance with the draft Polish Act, the above prohibition is also to be applied accordingly to reporting persons who provide work or services on a basis other than an employment relationship – unless the nature of the work or service performed excludes the application of such action to the reporting person .
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:
- 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;
- imposing an obligation or refusing to grant, limit or withdraw an entitlement, in particular a concession, permit or relief.
Also in this case, the list of actions considered as retaliatory actions is open , and – similarly to the case of an employment relationship – actions taken by the “employer” will not be considered as retaliatory actions if he proves that he was guided by objective and duly justified reasons .
Protection against retaliatory actions is therefore to extend not only to persons who are employees in the strict sense (i.e. those in an employment relationship), but also to other persons performing work on the basis of other titles (such as a contract of mandate, B2B contract, internship or traineeship contract, and others).
Importantly, the prohibition of retaliatory actions and protection against such actions applies not only to the whistleblower, but also to:
- a person assisting in making such a report
- a person related to the reporting person
- a legal person or other organizational unit assisting or associated with the reporting person – in particular one that is owned or employs the reporting person.
Employers who take retaliatory action against an employee who reports a violation of the law or other persons indicated above must face consequences.
The draft law provides that a reporting person against whom the employer or the other party to the legal relationship (e.g. the principal) committed retaliatory actions referred to above is entitled to compensation in full .
The bill, as currently proposed, also includes a provision stipulating that anyone who has suffered harm due to the whistleblower's deliberate reporting or public disclosure of false information is also entitled to compensation . The amount of such compensation is to be no less than the average monthly salary in the business sector on the date of the report or public disclosure. Therefore, severe financial consequences in the form of an obligation to compensate for the harm caused may affect not only the employer who retaliates against the whistleblower, but also the whistleblower himself – in situations where the report contains false information and the whistleblower's actions caused harm.
The draft bill also stipulates that a whistleblower's reporting or public disclosure cannot constitute grounds for liability, including disciplinary liability or liability for damages resulting from the violation of the rights of others or obligations specified in legal provisions, in particular regarding defamation, infringement of personal rights, copyrights, personal data protection regulations, or the obligation to maintain confidentiality, including trade secrets . If such legal proceedings are initiated against a whistleblower, they have the right (under Article 16, Section 2 of the draft bill) to request their discontinuation, provided, however, that the reporting party had reasonable grounds to believe that the reporting or public disclosure is necessary to disclose a violation of the law in accordance with the Act . Therefore, the reporting cannot constitute grounds for an employer to bring a private lawsuit against the employee for defamation or a lawsuit for infringement of their personal rights.
Retaliatory actions against a whistleblower may result not only in the obligation to pay compensation, but also in criminal liability . The bill provides that anyone who retaliates against a person reporting a violation of the law or a public disclosure (or a person assisting in making such a report, or a person associated with the reporting person, as well as a legal person or other organizational unit assisting or associated with the reporting person – in particular one owned or employed by the reporting person) will be subject to a fine, restriction of liberty, or imprisonment for up to 2 years .
Furthermore, if a person undertakes more than two acts of retaliation listed in Article 12(1), he or she shall be subject to a penalty of imprisonment for up to three years.
It therefore appears that the currently pending Polish draft law on whistleblower protection contains solutions that can effectively prevent employers, broadly defined, from exploiting their stronger position through retaliatory measures against employees who report 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 create opportunities for abuse of the granted powers by both employers and employees.
Legal basis:
- Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019
- Draft of April 6, 2022, Act on the protection of persons reporting violations of the law.
This article is for informational purposes only and does not constitute legal advice.
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