According to the Labour Code, an employee is obliged, among other things, to take care of best interests of the employer’s establishment and protect its property, which is usually further specified in the company’s work regulations. In practice, this means that employees, based on labour law provisions, should, among other things, inform the employer about observed violations, damages to the workplace property, and other identified risks. To some extent, we can expect provisions strengthening this obligation based on the implemented directive on the protection of whistleblowers, which we have been dealing with since its adoption. Recently, another project of the long-awaited law on the protection of persons reporting violations of the law has emerged.
Protection of Whistleblowers – Who Is Eligible
Protection against retaliatory actions should encourage potential whistleblowers to report identified abuses, which, in turn, can prompt employers to react more promptly to potential legal violations and thus protect themselves from financial losses and reputational damage.
According to the draft law, protection is granted to whistleblowers in the context of reports concerning violations in areas such as:
- Environmental protection,
- Public procurement,
- Food safety,
- Public health,
- Services, products, and financial markets,
- Anti-money laundering and counter-terrorism financing,
- Product safety and compliance with requirements,
- Transport safety,
- Consumer protection, and
- Privacy and personal data protection.
Furthermore, there is the possibility of extending the thematic scope to include reports of violations of internal regulations or ethical standards, provided they are established based on legal provisions and comply with them.
Persons protected in the context of reporting violations as whistleblowers include, in particular, employees, candidates, temporary workers, individuals employed under civil law contracts, interns, and members of legal entities’ bodies, etc. It is worth noting that a prerequisite for whistleblower protection is having valid grounds that the reported or disclosed information concerns the public interest, is true at the time of reporting or public disclosure, and constitutes information about a legal violation. Importantly, in the case of external reporting, which involves providing information to a public authority, obtaining a certificate issued within 30 days of receiving the report is a condition for obtaining protection.
Methods of reporting
The most advantageous method of reporting, from the perspective of employers, is internal reporting, through which they can directly conduct an explanatory process and immediately implement appropriate corrective measures. As a rule, the obligation to establish internal reporting channels applies to private sector entities employing at least 50 employees.
Employers should remember that apart from implementing the appropriate procedure, they will also be obliged to maintain a register of internal reports and will be administrators of the personal data collected therein.
External reports are made to public authorities, and in cases where the whistleblower cannot determine the competent public authority, the report can be made to the State Labour Inspectorate.
The third option for reporting is public disclosure, which involves making information about the violation public, which may be associated with potential reputational damage. In this case, to obtain protection, it is necessary to meet specific conditions stipulated by the law.
What whistleblower protection entails?
Retaliatory actions, attempts, or threats to take such actions cannot be taken against the whistleblower. The legislator provides examples of such behaviours, including:
- Refusal to establish an employment relationship,
- Termination or dissolution of an employment relationship,
- Non-renewal of a subsequent employment contract,
- Withholding promotions,
- Negative performance evaluations,
- Imposition or application of disciplinary measures,
- Mobbing or discrimination,
- Violation of personal rights,
- Unfavorable or unjust treatment.
As the above list of potentially retaliatory actions is very broad, and some of the behaviours mentioned above do not have strictly defined characteristics, unlike, for example, mobbing, the definition of which should not raise significant doubts in light of the provisions and rich jurisprudence (in this regard, we invite you to read the article). However, considering the above, it seems that it will be difficult to assess when withholding promotions results from the whistleblower’s report, a temporary difficult situation of the employer, or solely from the employee’s inappropriate conduct. Most likely, such situations will be subject to individual assessment by the court, but it will be up to the employers to provide appropriate justification for potentially unfavorable treatment of the whistleblower. Importantly, according to the provisions, the burden of proof that the conduct in question is not retaliatory will lie with the employer. This means that employers should approach all decisions concerning individuals reporting violations with particular caution and, if necessary, gather appropriate evidence justifying the actions or omissions taken to avoid severe consequences, as mentioned below.
Sanctions provided for in the draft law on whistleblowers
For violating the provisions of the law on the protection of individuals reporting legal violations, the legislator has provided relatively stringent consequences, including fines, and even limitations or deprivation of liberty. For example, individuals engaging in the retaliatory actions mentioned above against a person reporting or assisting in reporting will be subject to a fine, restriction, or deprivation of liberty for up to two years. In the case of finding that such a person acts persistently, they may face imprisonment for up to three years.
It is worth bearing in mind that the penalty will also apply to:
- Preventing or obstructing the submission of a report,
- Disclosing the identity of the whistleblower, a person related to them, or assisting in reporting, contrary to the law’s provisions,
- Failure to establish a procedure or establishing it in violation of the law.
Challenges for organizations
Although, for the time being, only the content of the draft law is known, given the number of issues to be resolved within organizations, employers should remain vigilant in the near future and start thinking about implementing appropriate procedures. It should be borne in mind that the new regulations will not only require the effective implementation of the appropriate process, i.e., appropriate systems and logistical-organizational arrangements, but also staff training and, above all, gaining the trust of employees, whose internal reports will help protect the interests of the employer and preserve its reputation. Practice shows that the quick implementation of preventive and remedial measures within the organization generally yields the best results and is the most desirable way of addressing issues among employers.
One of the biggest challenges for entrepreneurs will undoubtedly be defining a procedure that, on the one hand, allows for maintaining confidentiality and protecting the whistleblower’s identity and, on the other hand, secures the organization’s interests in terms of decision-making regarding the future of the employee, such as using disciplinary measures, temporarily suspending promotions, or conducting ongoing performance evaluations.
Effective procedures will protect the organization
The proper functioning of the violation reporting process is primarily in the interest of the organization, especially considering the severe sanctions that will apply to individuals, including its representatives and employees making key decisions.
Although, as mentioned at the beginning, employees are required to report irregularities in the interest of the workplace based on labour law regulations, this is relatively rare in practice. In this regard, the implementation of applied procedures ensuring confidentiality and protecting the employment relationship, as well as raising awareness among employees through training and information campaigns, should change the previous approach.
Maria Aleksiejak, Trainee attorney-at-law (PL)
Dr. jur. Jan Muszyński, Attorney-at-law (PL)