The draft Act on the Protection of Whistleblowers adopted. What solutions does it provide?

The Council of Ministers has adopted a draft Act on the Protection of Whistleblowers. This is the next stage of regulating the protection of whistleblowers. What solutions does it introduce?

Act on the Protection of Whistleblower – key assumptions of the adopted draft

The new Act aims to provide protection for whistleblowers, that is people working in both private and public sectors who report breaches of law, disclose information or have reasonable suspicions of breaches of law, who have become aware of those breaches in a work-related context. The provisions of the Act transpose Directive 2019/1937 on the protection of persons who report breaches of Union law into the Polish legal system. Below we present key assumptions of the draft Act of 2 April 2024.

Three ways to report breaches

Whistleblowers will be able to report breaches or disclosures by:

• internal reporting channels (set up by private and public entities);
• external reporting channels (to the relevant state authorities);
• public disclosure (in specific cases).

The requirements for the establishment of internal and external reporting channels and the rules for public disclosure are set out in detail in the provisions of the Act. And so, for example, an internal procedure to be implemented by public and private sector entities that employ at least 50 people as of 1 January or 1 July of a given year will have to be agreed with the company’s trade unions or employee representatives.

External channels, on the other hand, are to be used to report breaches of law to the relevant state authorities. The draft provides for the designation of a national body combining the provision of support to whistleblowers and the reception of external reports.

A whistleblower not only with an employment contract

The protection will cover whistleblowers regardless of the basis and form of work or service:

• employment contract,
• civil law contract,
• conducting business activity by a natural person,
• management contract,
• voluntary services,
• internship,
• apprenticeship,
• military service.

Protection will also extend to persons providing work for entities with which the legal entity maintains business relations – contractors, subcontractors or suppliers, and to other whistleblowers reporting information about breaches, such as shareholders, partners, proxies, members of governing bodies (management or supervisory board).

In addition, protection will also apply to whistleblowers who report or publicly disclose information about a breach of law obtained in a work-related context before entering into an employment relationship or other legal relationship constituting the basis for the provision of work or services or performing a function in or for a legal entity, or performing service in a legal entity, or when such a relationship has already ceased.

The Ombudsman as an institution supporting whistleblowers

The Ombudsman will be responsible for providing information and support to whistleblowers and for receiving external reports. In the case of external reports, the Ombudsman is to carry out their initial verification and then refer the case to a public institution competent for its substantive examination.

Protection against retaliation

If a whistleblower is retaliated, the whistleblowers will be entitled to seek compensation in the amount not lower than the average monthly salary across all industry sectors in the previous year (currently it is PLN 7155.48). The previous draft provided for compensation of 12 times the average salary.

In addition, in connection with the whistleblower’s report, the whistleblower cannot be held liable, including disciplinary liability or liability for damage related to the violation of the rights of third persons. In particular, it concerns copyright, personal data protection regulations and the obligation to keep business secrets.

Act on the Protection of Whistleblower – vacatio legis

The new solutions are to enter into force after 3 months from the date of their publication in the Journal of Laws. The provisions on external reporting will start to apply 6 months after the date of publication.

Whistleblower protection – how can we help?

We offer comprehensive support in the implementation of an effective system for reporting misconduct, audits of the company’s operations, as well as development and adaptation of the necessary procedures.

Learn more: Protection of whistleblowers