In 2019, the Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law, also known as the “Whistleblowing Directive”, was published. The member states are obliged to implement it by 17 December 2021. What does it involve for employers?
The main objective of the directive is to protect individuals reporting irregularities in the functioning of companies, both private and state-owned ones. This is because such people very often face discrimination and are subject to retaliatory actions. In the light of the provisions of the directive, a whistleblower may be, first of all, an employee, but not only – each person who makes a report in a work-related context is subject to protection. Consequently, protection is also provided to, among others, individuals employed under civil-law contracts, former employees, individuals during their recruitment process, contractors and subcontractors, as well as shareholders or members of governing bodies.
Protection of whistleblowers – what kind of new obligations will be imposed on companies?
Due to implementation of the directive, employers will be subject to new obligations. Companies will be obliged to:
The key issue accompanying fulfillment of the obligations imposed on companies will be protection of whistleblower’s identity. It will be necessary to develop a system accepting reports which will ensure lack of access of individuals not dealing with report examination to data of the reporting person. It will also be important to select impartial individuals to verify information provided in the report. The employer will be able to entrust this task both to individuals from the outside of the company and an external entity, e.g. a law firm or any other specialised entity.
The provisions of the directive limit its application to reports concerning violations of the financial interests of the European Union and the rules of the internal market, as well as violations in the areas of:
The listed types of violations are a minimum of the objective scope – the Polish legislator may make the act implementing the directive include provisions based on which protection will be given also to whistleblowers reporting violations in other sectors.
Initially – until 17 December 2021 – the provisions implementing the directive are to apply to the largest entities in the private sector, i.e. companies having at least 250 employees, and generally all entities from the public sector. Entities employing from 50 to 249 individuals will become subject to the new regulations until 17 December 2023. The limit of 50 employees does not apply to the sector of finance, civil aviation, maritime transport and entities operating in the area of natural gas and crude oil deposits in marine areas.
Director of the Labour Law Department, Attorney-at-law
TGC Corporate Lawyers
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