Main changes
The third iteration of the draft differs from the first statutory assumptions of 14 October 2021 which we provided information about last December. The legislator has now extended the scope of the new regulations not only to employers, but in principle to all legal entities for which work is performed. The group of persons who can make notifications has also been expanded to include temporary employees, apprentices, or professional soldiers. The catalogue of prohibited retaliatory actions has been amended to include coercion, intimidation, mobbing, causing financial loss, or inflicting non-material damage. The catalogue of offences related to the whistleblowing procedure has been expanded and the penalties already existing in the draft have been strengthened.
Whistleblowers
The aim of the new Act is to protect individuals (so-called 'whistleblowers') who report or disclose truthful information about violations of rights to the public and who have obtained this information in a work-related context. This not only includes employees (past and present), but also temporary employees, persons providing work on a basis other than an employment relationship including under a civil law contract, entrepreneurs, shareholders and partners, members of bodies of legal entities, persons providing work under executive supervision and direction, subcontractors, suppliers, as well as volunteers, apprentices and trainees. A whistleblower cannot be a medical or legal professional if his or her report were to violate medical or legal confidentiality.
It is a requirement of the Act that a whistleblower, in making a report, must act in good faith, i.e. in a situation in which the whistleblower has reasonable grounds to believe that the information about the violation of law that is the subject of the report or publicity is true at the time of the report, and constitutes information about a violation of law. Reports made anonymously, which could go unrecognised by legal entities and public authorities, have been excluded from the statutory provisions. The disclosure of the identity of a whistleblower making an anonymous report grants him or her protection on par with whistleblowers.
Internal and external notification procedure
One of the most important elements of the bill is the obligation for legal entities to introduce, after prior consultation with either the company’s trade union organisation or the representatives of persons working for the legal entity, an internal notification and follow-up procedure. The legal entity is obliged to keep a register of all internal notifications and is the controller of the personal data collected with it.
The obligation to put in place an internal notification procedure applies to private entities for which work is performed by at least 50 persons. An exception is made for private entities that perform activities in the fields of: financial services, products and markets, prevention of money laundering and terrorist financing, transport safety, and environmental protection. The abovementioned entities are required to put in place whistleblowing procedures regardless of the number of persons employed. The law will enter into force two months after its promulgation, whereas the implementation of the obligation to establish an internal procedure by private entities with at least 50 and less than 250 employees is to take place by 17 December 2023.
The internal procedure should specify: the internal organisational unit or the person who will be authorised to receive notifications; the method of transmission of said notifications with the correspondence details of the whistleblower; the impartial internal unit authorised to follow up; the obligation to confirm to the notifier the acceptance of the notification within seven days of its receipt; the obligation for the organisational unit to follow up; a maximum time limit for feedback to the notifier not exceeding three months from acknowledgement; the definition of an incentive scheme for the use of the internal reporting procedure; comprehensible and easily accessible information on how to make external reports to the Ombudsman or to public authorities and, where appropriate, to European Union institutions, bodies or agencies.
External reports can be made on paper or electronically, without prior internal reporting, and should be addressed to the Ombudsman or a public authority. These authorities, upon receipt of a notification, are obliged to verify the notification and, in the event of a positive outcome, to follow up and provide feedback to the notifier.
Protection of whistleblowers and criminal sanctions
The legislation regulates the ways in which whistleblowers can be protected and contains an exemplary catalogue of conduct that cannot be undertaken against the whistleblower. These include retaliatory actions as well as any attempts or threats to do so, or the unfavourable treatment of a whistleblower for having made a report. These actions include, but are not limited to, reduction in pay, omission from promotion, coercion, intimidation, bullying, transfer to a lower position, or termination or dismissal without notice.
Whistleblowers are granted the right to compensation in the event of retaliation against them and are excluded from disciplinary liability as well as liability for damages for the violation of the rights of others or the obligations set out in the law (e.g. defamation, or the obligation of corporate secrecy).
The Act provides for the introduction of new types of offences relating to obstructing or attempting to obstruct a report, retaliation, breach of the obligation to keep the identity of the person making the report confidential, knowingly making a report or disclosing false information, failing to establish an internal procedure, or establishing a procedure that does not meet statutory requirements. The related penalties of a fine and of restriction or imprisonment are also indicated. The prohibition of unfavourable treatment and retaliation, as well as protection, also extends to persons assisting in making the report, as well as to persons related to the whistleblower.
Although the deadline for the implementation of the directive passed on 17 December 2021, the bill is still at the stage of government work and it is difficult to predict when it will reach the Parliament.
Next steps
Hogan Lovells will keep you informed as to any developments related to the introduction of whistleblower protection. If you have any questions, please do not hesitate to contact us. We will be happy to provide further clarification.
Authored by Agnieszka Szczodra-Hajduk and Karolina Dębiec.
