The proposed act on the protection of whistleblowers, i.e. persons reporting violations of the law, will be addressed to all employers, both private and public. Anyone with knowledge of a violation of the law in their professional environment can become a whistleblower. If such a person perceives a violation of the provisions of certain areas of law, he can report the offense using one of three options:

• directly informing the employer (this is the so-called internal notification) or
• as part of the so-called external notification addressed to public authorities, e.g. the Ombudsman, or
• use the so-called public disclosure, i.e. in any way to an unmarked circle of recipients (e.g. through mass media or social channels).

The purpose of the Act is to protect persons reporting a violation of the law.

The Act will be addressed to all Polish employers employing more than 249 employees, and after the transitional period, i.e. from 17 December 2023, also to those employing from 50 people. In the public sector, it will be immediately addressed to employers employing from 50 employees. It imposes the obligation to adopt the rules of reporting violations of the law, create reporting channels, keep a register of reports and conduct the so-called follow-up actions by launching explanatory procedures and internal investigations. Violations of the law may concern such areas as: transport safety, environmental protection, personal data protection, public health, food safety or consumer protection. The employer may also assume in internal regulations that the violation of the law may concern other areas of law than those listed in the Act, e.g. mobbing, discrimination or bribery.

The employer’s obligation under the Act is to implement an appropriate internal reporting channel. The application itself can be in oral form, in writing (e.g. a dedicated e-mail) or using a specially prepared form. The regulations must also include from whom (who can be a whistleblower) and by whom notifications will be accepted.

First of all, the employer may not take the so-called retaliatory actions (e.g. dismiss an employee or suspend his promotion due to the fact that he has reported a violation of the law). In addition, the employer is obliged to ensure the confidentiality of the data of the reporting person.

We cannot, for example, dismiss an employee because he informs about a violation. However, if this happens, he is entitled to compensation. In addition, the whistleblower is guaranteed anonymity, i.e. the employer is to process the information through such a channel that no one else knows who reported the breach. Those who will be involved in receiving applications will need to have written authorizations to handle such notifications.

The legislator provided for criminal sanctions for failure to comply with the new regulations. Failure to implement the directive, including failure to introduce internal regulations (lack of a communication channel or reporting regulations), is punishable by fines and even imprisonment. This also applies to retaliatory actions, preventing the transfer of information about a violation of the law, or disclosure of the reporting person’s data.

And what if the employee reports on the employer in bad faith? The law and for this provides for criminal sanctions. If an employee who is afraid of, for example, dismissal, submits a false notification of a violation of the law that did not occur – he will be criminally liable.

Employers are currently awaiting the passage of the law. After its publication, they will have very little time to implement it, so compliance departments and legal departments in companies should immediately take action to prepare the organization for the implementation of new solutions.

Source: https://www.prawo.pl/kadry/sygnalisci-nowe-obowiazki-pracodawcow,512086.html

Projekt otrzymał dofinansowanie z Norwegii poprzez Fundusze Norweskie 2014-2021, w ramach programu „Dialog społeczny – godna praca”.