On October 18, the draft of the Polish act implementing the Directive of the European Parliament and of the Council (EU) 2019/1937 of 23 October 2019 on the on the protection of persons who report breaches of Union law (the "Directive") was published.
Large employers (with at least 250 employees) should implement whistleblower protection from 17 December, which is less than two months from now. It is therefore worth following the progress of legislative work in order to be well prepared for the implementation of the proposed regulations.
Scope of applications
First, it should be noted that the Polish legislator decided to expand the catalogue of infringements subject to notification. In accordance with the draft, reporting will cover violations of law in the areas listed in the Directive (i.e., public procurement, financial services, products and markets, and prevention of money laundering and terrorist financing, product safety, transport safety, environmental protection, radiation and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data, and security of network and information systems) however, the scope of reporting will cover not only actions (or omissions) constituting a breach of EU law (as stipulated by the Directive), but also of Polish law.
Available notification channels
Similarly to the Directive, Polish legislation will provide for three channels for notifications: internal (intra-company notification); external (notification to state authorities) and public (disclosure of violations in the media). In principle, regardless of the mode selected by the whistleblower, he or she will be protected (although certain limitations will apply to public disclosure).
Internal notifications
Public entities, private entities employing at least 50 people, and financial institutions (in the latter case regardless of the headcount), will eventually be required to implement internal whistleblowing procedures. Smaller entities will be able to implement such solutions on a voluntary basis.
The draft indicates that the internal procedure should specify: organisational units/entities responsible for receiving and processing the notifications, manners in which the infringements can be reported, as well as deadlines for certain actions (7 days for confirmation of receipt of notification and 3 months for feedback addressed to the whistleblower).
The draft provides for a requirement that the unit responsible for processing the notifications should be "independent" however there is no strict conditions to be fulfilled in order to guarantee such independence. All persons involved in processing of notifications will have to be authorised for these actions in writing as well as be bound by non-disclosure obligations.
It is already known also that internal regulations in this respect will have the nature of intra-company labour law within the meaning of the Labour Code and will be subject to consultation with trade unions operating at the company, and in the absence of trade unions – with employee representatives.
The question of the number of employee representatives may be relevant if there are no trade unions in the company. The draft clearly uses the plural in this case. In many companies, however, there is a one-person representation. For the correctness of the implementation, it may be necessary to co-opt at least one person.
It is also worth verifying the scope of authorisation of the employee representation. It may turn out that agreeing on a procedure for protecting whistleblowers goes beyond this authorisation.
External channel
According to the draft, the body selected to receive and process whistleblower submissions will be the Commissioner for Human Rights (the state ombudsman). It is to this body, not the police or the prosecutor's office, that whistleblowers' reports should be first sent, bypassing the internal channel or if the final outcome of the internal proceeding proves unsatisfactory to the whistleblower.
Public disclosure
The internal and external channels will generally be equivalent, i.e. a whistleblower will generally not have to exhaust the internal channel to initiate a procedure before the Commissioner for Human Rights. However, the situation will be different for public disclosures. A person who fails to first execute an internal or external notification will not benefit from the protection envisaged for whistleblowers. Although there may also be certain exceptions to this rule.
Who can be a whistleblower?
The draft of the act broadly define the catalogue of persons who can obtain the status of a whistleblower. These will include, above all, persons employed by a company, regardless of the legal basis of their employment, i.e. employees, contractors, but also sole traders co-operating with the company, volunteers, interns, or trainees. The status of a whistleblower can be extended to persons whose employment has already ended and even those in the recruitment process, if they have found out about circumstances that need to be reported.
Whistleblower status may also be granted to persons employed by third parties with whom the company maintains business relations –subcontractors or suppliers, as well as members of the company's corporate bodies, its partners and shareholders.
Scope of protection
People who obtain the status of a whistleblower cannot be harassed on that account and any termination of their legal relationship will be deemed ineffective. Moreover, in connection with the notification, it will not be possible to claim damages from a whistleblower, to assert claims for infringement of personal rights, or to institute disciplinary proceedings against such a person, etc.
On the other hand, if the employment contract is terminated, the whistleblower will be entitled to claim compensation, not less than the minimum wage applicable at that time.
In order to assure effectiveness of the protection of whistleblowers, the scope of such protection will cover not only the person notifying irregularities but also persons and entities related/controlled with/by the whistleblower.
Any contractual provisions limiting (directly or indirectly) the right to notify will be deemed null and void.
***
There are less than two months left to implement the Directive. Taking into account the time frame, it is recommended to start preparatory works introducing or adjusting the existing internal regulations to the anticipated legislation. After the act is passed there may not be much time left for that.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
