The history of draft legislation on whistleblowers is already so long that it is difficult to indicate how many versions have already been presented. Under the terms of the EU Whistleblowers Directive, Poland was obliged to implement it into law in 2021. Unfortunately, despite many attempts and ideas, this has not been achieved to date. A few days ago, a new draft appeared, so this post briefly analyses where we are.
Current status of work
It can’t be said that nothing has happened with this issue in recent years – the previous government tried to grapple with the subject. However, the case didn’t seem to be a high enough priority to bring it to an effective conclusion. In addition, there is a case pending against Poland in the Court of Justice of the EU, which may result in a fine.
The new government seems to treat the whistleblowers’ bill as a matter of urgency, so further modifications were made and the bill was referred to the Standing Committee of the Council of Ministers for fast-track consideration, bypassing consultation and agreement.
Do reports of violations of the law even make sense?
In practice, we are very often confronted with queries as to whether whistleblower protection is just another obligation for the employer that won’t bring any benefit but only add to the problems.
Protection of whistleblowers is standardised by an EU directive, applicable in all EU member states. Poland is not the only country that has so far failed to implement whistleblower protection in time – Germany also needed more time to prepare an appropriate draft, but the law was implemented there in 2023.
For us, this was an important moment, because then whistleblower protection solutions started to be implemented more intensively in a market that is very close to us professionally. Observing the development of cases in the German market, we strongly conclude that waiting for the final entry into force of the law is not necessary to implement whistleblowing and whistleblower protection in an organisation.
According to the Federal Office of Justice in Germany, 309 reports were received between July and 30 November 2023, of which 19 were successful due to meeting the grounds for violation of the law under the Whistleblower Protection Act. Fourteen notices of possible criminal offences were also forwarded to prosecutors’ offices in connection with the reports received.
Who is a whistleblower?
It is worth remembering that a whistleblower is not an informer who has harmful intentions towards the employer. A whistleblower is an opportunity for an organisation to resolve an issue swiftly before serious harm is done, and to avoid possible legal consequences.
Surveys conducted in Germany showed that 90% of employees preferred to use an internal notification in order not to harm the employer, but only to remedy the organisation’s problems, which can best be solved without involving an external third party.
Proposed assumptions for a new whistleblower bill
Among other things, the new version of the bill provides for the following modifications:
- Shorter consultation of the internal notification procedure with trade unions or employee representatives in the organisation
Under previous drafts, the consultation of the internal notification procedure was expected to last between 7 and 14 days. The latest draft reduced the deadline from 5 to 10 days.
- Public interest less important than whistleblower protection
Until now, the drafts assumed that a whistleblower is only protected if the information contained in the notification concerns a public interest and is true at the time of the notification and that the notification constitutes information about a breach of law. The condition of the existence of a public interest has been removed from the existing draft bill, which should be seen as a good move, as this requirement did not derive directly from the Directive and will allow for a broader scope of protection for the whistleblower.
- Protection not only for the employee
The protection measures envisaged in the draft whistleblower law will be available regardless of the basis and form of employment. The protection envisaged will cover employees with an employment contract, persons providing work on the basis of civil law contracts, managerial contracts, B2B, volunteers, interns or trainees. In addition, the organisation’s contractors, subcontractors and suppliers will also be protected.
- The State Labour Inspectorate, however, won’t accept external applications.
During the preparation of previous drafts of the law on the protection of whistleblowers, a dispute arose as to which authority should be the recipient of so-called external reports. Initially, the Ombudsman was singled out for this task, which, however, was replaced in recent drafts by the State Labour Inspectorate. This was met with rightful criticism that the State Labour Inspectorate has neither the tools nor the personnel to effectively support whistleblowers. The latest draft bill assumes that the duty to support whistleblowers, to receive reports, verify them and forward them to the relevant public authorities will return to the Ombudsman’s tasks.
- Retaliation against a whistleblower can cost heavily
Under the terms of the latest draft, a whistleblower will have the right to claim full compensation if retaliatory reports are made against him or her by the employer.
- Businesses, authorities and organisations should hurry up
The bill provides that the law will enter into force 1 month after the date of promulgation and establishes a one-month deadline for the establishment of notification procedures. This means that there will be a short two-month period to establish procedures, prepare and implement whistleblower protection. It is worth getting to work now.
How can we help?
Our law office has been successfully supporting clients and implementing compliance systems in organisations for a long time, an example of our experience in this area can be found, among others, in the article “Case study: whistleblower protection system – implementation in 3 steps“. We advise, train, prepare procedures and, if necessary, also conduct investigations or support e.g. anti-bullying committees.
We also assist our clients in finding and selecting IT solutions to facilitate the process of reporting irregularities within the organisation. Our solutions are used not only by Polish companies with foreign capital, but also by capital groups conducting their activities through companies in Germany and other countries. If you are interested in a simple solution to support your organisation in protecting whistleblowers, we invite you to contact our Office.
Aleksandra Philips, LL.M., Trainee attorney-at-law (PL) | VAT specialist
Dr. jur. Jan Muszyński, Attorney-at-law (PL)