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8 November 2021

Who are whistleblowers?

Whistleblowers are individuals who publicize illegal or fraudulent practices in a company or other irregularities that they discover.

Until now, whistleblowers have not been subject to any protection in relation to their actions and, consequently, have been exposed to negative reactions, so the need for legal mechanisms for their protection has been recognized in the European Union, resulting in the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of whistleblowers, which aims to improve the enforcement of Union law and policies in specific areas by establishing minimum standards ensuring a high level of protection for whistleblowers. Based on the aforementioned Directive, the draft Law on Protection of Whistleblowers, dated 14 October 2021, prepared by the Minister of Family and Social Policy, is currently under procedure.

This newsletter is based on the content of the Directive and the draft law on protection of whistleblowers, and the final content of the solutions adopted may be subject to change.

Scope of disclosed violations

A violation of law – which may be disclosed – according to the draft, may be an act or omission unlawful or intended to circumvent the law concerning, among others, public procurement, prevention of money laundering and terrorist financing, transport safety, public health, consumer protection, security of networks and ICT systems, or protection of whistleblowers.

Who can become a whistleblower and be protected?

The Act will apply to any individual who reports or publicly discloses information about a violation of the law obtained in a work-related context, including employees, applicants for employment, co-workers, entrepreneurs, shareholders, partners, members of a corporate body, volunteers, or interns.

Whistleblower actions – internal reporting

An employer who employs at least 50 people will be obligated to introduce regulations for internal whistleblowing, allowing for internal reporting of violations of law. Such regulations should in particular specify the internal entity authorized by the employer to accept reports, the means of their transmission; whether the internal procedure includes accepting anonymous reports, the obligation to confirm to the reporter the acceptance of the report within 7 days of its receipt, and others.

An employer that employs fewer than 50 people will be able to voluntarily introduce internal reporting regulations.  In addition, irrespective of the number of persons employed, it will be mandatory for employers who perform activities in the areas of financial services, products and markets and the prevention of money laundering and terrorist financing, transport safety and environmental protection to introduce such regulations.

The internal notification regulations will constitute a source of labour law within the meaning of Article 9 of the Polish Labour Code and will be subject to consultation with trade unions or employee representatives.

Whistleblower actions – external reporting

Any whistleblower, without prior internal notification, will be able to make an external notification. The central authority for accepting reports will be the Ombudsman, and the public authority accepting reports concerning competition rules and consumer protection will be the President of the Office for Competition and Consumer Protection. In addition, other authorities accepting external notifications regarding infringements in the areas falling within the scope of their activities will also be public authorities.

Prohibition of adverse action

Adverse actions will not be permitted against a whistleblower. If the work is, or is to be, performed pursuant to an employment relationship, the whistleblower may not be disadvantaged because of the reporting or public disclosure. o Provisions in employment contracts, other acts creating the employment relationship, or creating rights and obligations for the parties to the employment relationship, to the extent that they directly or indirectly exclude or limit the right to make a report or public disclosure, will be null and void. An employee who experiences retaliation will be able to claim compensation from the employer. Also, provisions in civil contracts that limit or exclude the application of whistleblower rights will be invalid.

The bill indicates that the implementation of the obligation to establish internal reporting regulations by entities in the private sector with at least 50 and less than 250 employees occurs by December 17, 2023, while in other entities – on the date of entry into force of the Act.

Criminal liability is provided for violations of the Act.

The information presented here is based on a draft bill, so please note that the final solution may differ from the one presented.
The GLC team will inform you as soon as the legislature adopts the final statutory solution.

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8 November 2021 : Agata Szeląg

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