12.03.2024 Protection of whistleblowers

New draft Act on the Protection of Whistleblowers

The long-awaited draft Act on the Protection of Whistleblowers was published. Below we discuss the key changes.

New name of the Act

The new draft Act on the Protection of Persons Reporting Breaches of Law published on the website of the Government Legislation Centre on 6 March 2024, was given a new name: draft Act on the Protection of Whistleblowers. It implements the measures for the protection of persons reporting breaches of law required by Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019.

Replacing the term “person reporting breaches of law” with the term “whistleblower, as the legislator points out, was due to the fact that the term “whistleblower” is much more frequently used in relation to the issues of reporting breaches of law.

Key changes to whistleblower protection

The new draft Act, similarly to previous acts, aims to regulate issues relating to the reporting of breaches, the protection of whistleblowers and actions taken as follow-up by legal entities and public authorities.

In addition, the proposed solutions are intended to complement the existing provisions with the measures for the protection of persons reporting or disclosing breaches.

Broader material scope of the breaches

The draft Act defines a “breach of law” as an unlawful act or omission or an act intended to circumvent the law, in the fields indicated by the Act.

The Act extends the material scope of the “breach of law” with relation to Directive it implements.

The provisions protecting whistleblowers will also apply to:

  • public procurement,
  • financial services, products and markets,
  • preventing money laundering and terrorist financing,
  • product safety and compliance, transport safety,
  • environmental protection,
  • radiation protection and nuclear safety,
  • food and feed safety,
  • animal health and welfare,
  • public health,
  • consumer protection,
  • protection of privacy and personal data
  • security of ICT networks and systems,
  • financial interests of the State Treasury of the Republic of Poland and local government units.
  • human and citizen freedoms and rights;
  • corruption;
  • human trafficking;
  • labour law.

An example of a violation of human and citizen freedom and rights is the illegal surveillance of the means of electronic communication of a citizen. However, as regards the extension of the list of breaches by labour law, this is due to the increasing number of complaints received by the National Labour Inspectorate (50,502 complaints were received in 2022, out of which 27,895 were legitimate).

The protection is granted when reporting a breach or making a public disclosure

The whistleblower may make:

  • internal reporting,
  • external reporting, or
  • public disclosure,

but what is important is that the moment of reporting or making a disclosure will be tantamount to granting protection to the reporting person because from this moment the whistleblower is exposed to retaliation. The date of receipt of the report will not be relevant to the granting of protection. The Ombudsman will be the national authority that will provide information and support to the whistleblower.

External reporting and whistleblower protection

The Act stipulates that the Ombudsman will not only provide information and support to whistleblowers, but also receive the external reports (excluding support tasks carried out by other bodies).

Making an external report to the public authority competent to follow-up and inform the whistleblower is to take place without delay, but not later than within 14 days, and in particularly justified cases no later than 30 days.

In addition, the public authority responsible for the follow-up will issue a certificate at the whistleblower’s request confirming that the whistleblower is protected. Such a certificate of protection will be issued no later than 1 month from receipt of the whistleblower’s request.

Wider scope of free legal aid  

The newly formulated Act is also intended to extend the system of free legal aid and free civil counselling to help whistleblowers. The whistleblower should be able to use the various legal solutions available.

Temporary worker is also a whistleblower

The concept of “whistleblower” will also cover temporary workers within the meaning of the Act on the Employment of Temporary Workers of 9 July 2003 (Dz.U.2019.1563, as amended). In addition, the Act will also cover whistleblowers or persons disclosing breaches of law if they have made a report or disclosure of a breach of law in a work-related context prior to the commencement of an employment or other legal relationship giving rise to the provision of work or services, or the performing a function in or for a legal entity, or where such a relationship has already ceased.

Anonymous reporting

The legislator will allow legal entities, the Ombudsman and public authorities to decide independently whether they want to accept anonymous reports. Internal and external reports may be accepted in anonymous form.

If the entity decides to accept anonymous reports, it will be obliged to specify in the internal reporting procedure the procedure for dealing with such reports. However, the draft Act does not impose an obligation to accept anonymous reports, so if the entity decides not to accept anonymous reports, the provisions of the Act will not apply to such a report.

Whistleblower compensation

According to Directive, retaliation and its effects are also considered a damage to the person’s reputation, especially on social media, or financial loss, including loss of income.

To compensate the damage suffered by whistleblower, the whistleblower has the right to claim compensation in the amount not less than twelve times the average monthly salary across all industry sectors in the previous year.

Compensation for the person concerned

The Act also includes a provision on compensation and redress for a person who has suffered damage as a result of reporting or disclosing false information to the public. In this case, the court will decide on the amount of compensation.

Providing for internal reporting channel

The obligation to provide for an internal reporting channels is imposed on legal entities in the private and public sectors if the entity in:

  • private sector – employs at least 50 people on full-time basis as of 1 January or 1 July of a given year,
  • public sector – municipalities with at least 10,000 inhabitants or employ more than 50 people as of 1 January or 1 July of a given year.

The newly drafted Act provides for a common threshold of 50 persons performing paid work, regardless of the type of contract that binds them, as regards the obligation for a legal entity to provide for internal procedure for reporting breaches of law and follow-up, and provides for a complete exemption from this obligation to offices or organisational units of a municipality or district with fewer than 10,000 inhabitants. In addition, the obligations of legal entities which are local government units are to be performed by organisational units of local government units.

Entry into force of the Act

The legislator proposed that the Act enter into force three months after its publication. Within 3 months from the date of publication of the Act, the following provisions will enter into force:

  • the obligation for legal entities to provide for internal reporting channels,
  • protection of whistleblowers,
  • the penal provisions.

Meanwhile, a longer vacatio legis is provided for the Ombudsman and other public authorities. The provisions on the protection of whistleblowers for these authorities will enter into force six months after the date of publication of the Act.

Whistleblower protection – how can we help?

We offer comprehensive support in the implementation of an effective reporting system, audits of the company’s activity as well as in developing and adapting the necessary procedures.

Find out more: Whistleblower protection – TGC law firm

Magdalena Wilkoszewska Director of The Labour Law Department, Attorney-At-Law
TGC Corporate Lawyers
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