On 25 September this year, the regulations on the protection of whistleblowers, resulting from the implementation of the EU Directive 2019/1937, came into force. Under the new law, companies are required to implement procedures to ensure safe reporting of breaches and must ensure that whistleblowers are protected from retaliation.
In the following article, you will learn, among others, who can be a whistleblower, what their rights are, what reporting channels are and what protection whistleblowers are entitled to.
Who is a whistleblower?
According to Directive 2019/1937 of the European Parliament, a whistleblower is a natural person who reports or discloses information to the public about breaches of the law. The Polish Whistleblower Protection Act, defines a whistleblower as a person who reports or discloses to the public information about a breach of the law obtained in a work-related context.
A whistleblower can therefore be, for example, (the directory is not closed):
- employee, former employee, job applicant (UoP employment contract)
- contractor (contract of mandate, contract for specific work)
- member of the governing body
- a person performing work under the supervision and management of a contractor, subcontractor, supplier (any type of contract)
Whistleblower Protection Act – what can be reported?
A whistleblower may report a breach of the law (the Act contains a closed catalogue of breaches) in the following areas, among others:
- financial services, products and markets,
- product safety and compliance;
- animal health and welfare,
- protection of privacy and personal data.
Whistleblowing – channels for reporting or disclosing breaches
The Act provides for three main methods of reporting breaches:
- Internal reporting: Information about the breach is directed directly to the entity where the breach occurred (e.g. HR or the company’s board of directors)
- External reporting: A whistleblower can report a breach to public authorities, such as the Commissioner for Human Rights or relevant administrative authorities
- Public disclosure: With prior internal or external reporting, the whistleblower may disclose information about the breach publicly (e.g. in the media). In exceptional situations, it is possible to make public disclosure without prior notification
You can read more about the internal reporting procedure, the most important obligations for the employer or the scope of internal reporting here: Whistleblower Protection Act: new obligations for employers – TGC Corporate Lawyers
How to protect whistleblowers during public disclosures?
To effectively protect whistleblowers making public disclosures, it is important to understand both the procedures and conditions that ensure whistleblowers are protected from retaliation:
Conditions for public disclosure
- Exhaustion of other reporting paths: The whistleblower should first report a breach in the internal or external reporting mode. Public disclosure is treated as a last resort when other methods do not bring results
- Legitimate grounds for disclosure: A whistleblower has the right to public disclosure without prior notification if:
- the infringement poses an imminent threat to the public interest;
- there is a risk of retaliation if reported; it is possible to destroy evidence or there is collusion regarding the violation.
Forms of public disclosur
A whistleblower can choose one of three forms of disclosure:
- explicit: the identity of the whistleblower is known
- confidential: the identity is protected and not accessible to unauthorized persons
- anonymous: the whistleblower’s data remains unknown
Legal protection
Whistleblower protection includes:
- protecting the confidentiality of the whistleblower’s data and the data being the subject of the report;
- prohibition of retaliation, such as dismissal, demotion, deprivation of benefits or access to training, or other forms of reprisals.
What are the rights of whistleblowers?
Whistleblowers have a number of rights that protect them during and after a report:
1. Protection against retaliation
- Employers may not take any action that could harm the whistleblower for making the report.
2. Right to anonymity
- Whistleblowers have the right to report breaches anonymously, if this is provided for in the internal reporting procedure or in the external reporting procedure.
3. Right to information
- Whistleblowers have the right to be informed about the procedures for reporting breaches and the protection measures to which they are entitled. Employers are required to inform employees about these issues on a regular basis.
4. Legal protection
- The legal protection of whistleblowers applies from the moment of making a report or public disclosure. This means that a whistleblower cannot be exposed to negative consequences in connection with his or her actions if he or she acts in good faith and has reasonable grounds to believe that a violation of the law has occurred.
5. Right to compensation
- In the event of retaliation, the whistleblower is entitled to compensation, which cannot be lower than the average monthly salary in the national economy. He/she may also demand compensation for infringement of personal rights.
6. Enhanced whistleblower protection
- Protection covers not only whistleblowers, but also persons assisting in making a report and persons associated with the whistleblower. The Act also protects individuals who disclose information before or after the employment relationship ends.
7. Enabling Whistleblowing
- The Act imposes an obligation on employers with at least 50 employees to create internal procedures for reporting breaches and to take appropriate follow-up actions in response to reports. In the case of some categories of entities (e.g. operating in the sphere of financial services), the obligation to implement the procedure exists regardless of the number of employees.
Whistleblower protection and retaliation
The prohibition of retaliation against whistleblowers is a key element of the Whistleblower Protection Act, aimed at ensuring the safety of whistleblowers. Retaliation is any negative consequences that may occur in connection with the report made.
Retaliatory actions may include:
- Dismissal: an employer cannot dismiss a whistleblower just because he/she reported irregularities.
- Salary reduction: a reduction in a whistleblower’s salary or a deterioration in their financial conditions can be treated as retaliation.
- Promotion blocking: refusal of promotion or access to training.
- Demotion: transfer to a worse position or change of responsibilities to less responsible ones.
- Mobbing: allowing a whistleblower to be harassed or harassed by co-workers or superiors.
We encourage you to watch the recording of the webinar, in which TGC Corporate Lawyers experts present the regulations on the protection of whistleblowers, the scope of breaches, reporting procedures, or risks and sanctions (in Polish language only).
View the recording
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