Whistleblower Protection Act Will Soon be Implemented in Poland

The new bill establishes a system the aim of which is to ensure that a person who spots an infringement of the EU law will be able to report it without fear of any negative consequences from the part of their colleagues or superiors. The bill also imposes an obligation onto the entities which employ more than 50 employees to organize their own internal whistleblower protection system with specific regulations concerning reporting of infringements verifying notifications and protecting whistleblowers who fall victim of retaliation practices.

What does it mean to be a whistleblower?

The scope of the new law is wide. The bill provides for the protection of persons, who reported wrongdoings about which they had found out in connection to their employment or cooperation with the entity. This includes:

1. employees,
2. candidates for employment if they found out about the breach in connection to the recruitment process,
3. contractors,
4. self-employed contractors cooperating with an entity on a B2B basis,
5. shareholders,
6. persons employed by a contractor,
7. interns and trainees,
8. volunteer workers.

According to the bill infringements of the following areas of law may be a basis for a notification:

1. public procurement,
2. financial services, products and markets, and prevention of money laundering and terrorist financing,
3. product safety and compliance,
4. transport safety,
5. protection of the environment,
6. radiation protection and nuclear safety,
7. food and feed safety, animal health and welfare,
8. public health,
9. consumer protection,
10. protection of privacy and personal data, and security of network and information systems,
11. breaches affecting the financial interests of the Union,
12. breaches relating to the internal market, including breaches of Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law.

While establishing its own whistleblower protection system, an employer may enable the employees report breaches in other areas of law as well as internal regulations or ethical standards of the company.

Internal reporting channel

According to the provisions of the bill, an employer who employs 50 or more employees will be obliged to prepare an internal procedure regulating such matters as submission of notifications, verification of notifications, remedies taken to correct the infringement and protective measures in order to prevent retaliation against the person who reported the wrongdoing. The employer must enable the employees to report infringements in writing or orally. If a whistleblower wishes to report the breach during a meeting with a person responsible for receiving the notifications – they need to have such possibility.

All the persons participating in the process of receiving and verifying notifications as well as the process of taking protective measures must take all the actions necessary to keep the identity of the whistleblower as well as the identity of person suspected of committing the breach in secret unless the provisions of law stipulate otherwise.

The employer must prepare a document in which the whole process of submitting notifications, verifying them and protecting the whistleblowers will be regulated. This document should be deemed an intra-company source of labour law within the meaning of Article 9 of the Polish Labour Code and needs to undergo consultations with labour unions or – in the absence of labour unions – with the representatives of the employees. The regulations concerning the internal reporting must include information about the possibility of submitting the notification via external reporting channels and a brief guidance how to do it.

External reporting channel

Regardless of whether the employer established its own internal reporting system and regardless of whether the employer has an obligation to do so, a whistleblower may report a breach of the EU law via external reporting channel. A person who wants to use this way of submitting notifications does not have to use the internal reporting channel first.

According to the provisions of the bill, the Polish ombudsman will be the central authority authorized to receive and verify notifications in all categories of cases and taking protective measures to protect the whistleblower. The bill also grants other specialized public authorities to receive and verify notifications in certain categories of matters. In fact, some of the public authorities already do that, e.g. the President of Office for Competition and Consumer Protection is competent for receiving notifications in cases connected to competition and consumer protection and the General Inspector of Financial Information is responsible for notifications concerning breaches of anti-money laundering regulations. The new law is intended to make this system more coherent.

Public disclosure

The bill introduces a new way of reporting infringements which was not regulated in the Polish law before – public disclosure. Public disclosure is defined as making information available by the public domain. A person who reported the breach of law by making the information publicly known will not always receive protection set out in the bill. As a rule, a whistleblower may publicly disclose the information on condition that they reported the infringement via internal and external channel or only via external channel and this person did not receive any information on corrective measures taken as a result of a notification within the time limit established in the bill. In certain situations a whistleblower may make a public disclosure even if they did not submit any notification via internal or external channel, provided that:

• the breach may constitute an imminent or manifest danger to the public interest, such as where there is an emergency situation or a risk of irreversible damage,
• in the case of external reporting, there is a risk of retaliation or there is a low prospect of the breach being effectively addressed, due to the particular circumstances of the case, such as those where evidence may be concealed or destroyed or where an authority may be in collusion with the perpetrator of the breach or involved in the breach.

Protection against retaliation

The bill provides for protective measures for persons who have reported the infringements using the internal and external channels or made public disclosure according to the regulations set out in the bill. The whistleblower must be protected against any acts of revenge which may result from the notification, such as refusal to conclude or prolong a contract of employment, terminating the employment relationship, deterioration of employment conditions, omission for promotion, acts of discrimination or harassment. An unilateral act of terminating a contract of employment or other legal relationship on the basis of which a person works for the employer is void. If the employment conditions or the conditions of other legal relationship on the basis of which a person provides their services has been deteriorated, this person is entitled to damages of the amount not lower than the minimum wage (at the moment PLN 2800, since 1^st January 2022 – PLN 3010 gross). An employer may defend against the claims of the whistleblower if they demonstrate that while taking action that worsened the situation of the whistleblower the employer they only took into account objective reasons not connected to the fact of reporting infringement.

When do the employers need to introduce the reporting procedures?

According to the bill, the employers who employ 250 or more employees need to introduce an internal procedure for reporting infringements as soon as the new law comes into force, which is two weeks upon its publication. Smaller employers who employ from 50 to 249 employees have more time – they will be obliged to prepare the procedure by 17^th December 2023. According to the directive, the provisions for whistleblower protection should be implemented by 17 December 2021, however, taking into account the stage of legislative procedure, Poland will probably not make it on time.

Failure to implement an internal reporting procedure is subject to criminal liability, a perpetrator may face up to 3 years of prison. That is why the employers had better not wait too long with the implementation of internal procedures especially that after the publication of the law they will have only two weeks to prepare for the new obligations.

By Mariusz Purgal, Counsel, and Magdalena Wielgosz, Junior Associate, Konieczny Wierzbicki