Periodic employee evaluations in the context of the draft whistleblower bill

The saga under the title of ‘whistleblowers’ in Poland continues. Work is currently underway on yet another draft of the whistleblowers act. The history of attempts to implement the Act on whistleblowers into the Polish legal system dates back to 2021, by which time the deadline for implementing the provisions of the EU Directive had passed, and we are currently one of the last EU member states without implemented legislation in this area. In the context of today’s post on periodic employee evaluations, the provisions regulating criminal liability for retaliation against a whistleblower, which appeared in the draft law, will be relevant for us.

Protection of a whistleblower against retaliation

Under the draft Bill, a whistleblower will be protected from retaliation from the moment of reporting, provided that the whistleblower had reasonable grounds to believe that the information being reported was true at the time of reporting and that it constituted information about a violation of the law.

Periodic employee evaluations and whistleblower protection

Periodic employee evaluations are crucial in managing a team. They allow for the analysis of staff performance and the identification of each employee’s strengths and weaknesses. Increasingly, periodic employee appraisals are not just limited to performance appraisals, but are becoming an excellent tool to identify and exploit the potential of the individual employee within the organisation.

Periodic employee evaluations can also serve an evidentiary and protective function in the event that an employer wishes to terminate an employee who has been a whistleblower, but the reason for termination is not related to the report made.

Case study: periodic employee evaluations and whistleblower protection in practice

The employer observed a long-term decline in the employee’s commitment and inadequate performance of his duties. The employer had not implemented a periodic employee evaluations system in the organisation, so he conducted a disciplinary interview with the employee but did not document it in any way. However, the interview did not have the expected effect and the employee’s behaviour had a disruptive and demotivating effect on the work atmosphere and colleague relations.

In the meantime, the employee discovered that the employer was wrongly calculating and paid overtime wages, so using the organisation’s internal whistleblowing channel, he informed the employer about that matter.

As a result of previous observations of the employee’s behaviour and the lack of results from the disciplinary interview, the employer decided to terminate the employment contract and justified the reasons for handing in the termination notice. However, this was not related to the reported violation.

In such a situation, would the handing of the termination notice not expose the employer to criminal liability for retaliation against the whistleblower?

This question cannot be answered conclusively at present, as the provisions of the Whistleblower Protection Act have not yet entered into force and we do not know what their interpretation will be.

Employer retaliation

However, our experience suggests that there is a high probability that the employee described above, when appealing the termination notice to an employment tribunal, will indicate that the employer has retaliated against him for reporting him as a whistleblower.

In such a situation, it will be up to the employer to show that the termination of employment does not constitute retaliation for having made the report.

If the employer does not carry out periodic employee evaluations and does not have the relevant documentation to show that the handing of the termination notice was justified and unrelated to the employee’s whistleblowing, the employer’s position before an employment tribunal will be evidentially difficult and it may even face criminal liability for the termination.

Effective tools as an opportunity for the employer when resolving labour disputes

As can be seen from the example indicated, proper employee documentation and procedures can be effective tools when resolving termination disputes.

We suggest reviewing your organisation’s existing periodic employee evaluation procedures and, if they are not in place, implementing them appropriately, as effectively implemented and periodic employee evaluation can be very helpful in a crisis situation to counter allegations of retaliation.

Please feel free to contact our experts, who will be happy to share their experience in developing and implementing employee procedures and policies.

Author:
Łukasz Błażejewski, LL.M., Attorney-at-law (PL)