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Final version of the draft law on whistleblowers – key assumptions

Poland faces the challenge of implementing EU Directive 2019/1937 of 23 October 2019 on the protection of whistleblowers, also known as the Whistleblowing Directive. As required by the directive, EU member states were required to implement its provisions into their national legal order by 17 December 2021. Poland failed to meet this deadline, which puts it in a position where it may face fines for delayed implementation. The new Polish government, realising the urgency and importance of the situation, has accelerated work on the national implementation of the directive. This can be seen in the approach to the creation of a new version of the draft law on the protection of whistleblowers, which takes into account comments made during public and industry consultations. This demonstrates an openness to dialogue and a desire to adapt the legislation to Poland’s socio-economic realities, while respecting the directive’s guidelines.

At its last meeting, the Council of Ministers adopted the final draft of the Law on the Protection of Whistleblowers, published on 28 March 2024. The final step before the Act is submitted to the President for signature is the deliberations of the Sejm, which will approve the current wording of the Act. This step is crucial for the further handling of the bill, which aims to implement the requirements of the EU whistleblower protection directive. The new draft law on the protection of whistleblowers in Poland introduces a number of significant changes aimed at increasing the protection of whistleblowers.

We outline the key features of the newly published draft law:

  1. The new draft law proposes to extend the scope of whistleblower protection, going beyond the minimum requirements of the EU Directive. The most relevant categories of violations to be protected include, among others: corruption, human trafficking, human rights violations, as well as environmental, public health and occupational safety and labour rights legislation. The intention is not only to protect whistleblowers from potential retaliation, but also to ensure that they have the appropriate knowledge and tools to defend their rights.
  2. Extension of the catalogue of persons who can be considered a whistleblower. The new bill also provides for the addition of a proxy to the catalogue of persons who can be considered a whistleblower. On the other hand, there are claims that extending the scope of violations that will be reportable under the proposed whistleblower protection act to include those concerning labour law will raise a problem, in particular that the reporter may be the employee himself. By granting employees the possibility to report violations as whistleblowers, their legal protection is increased. Employees may feel safer knowing that they will be protected from potential reprisals by their employer if they report a violation. The main concern is that not every employee is fluent in employment law, which can lead to situations where incidents are reported that are not actually violations. Nevertheless, the report itself will trigger the procedure, which requires organisations to be prepared to deal with such cases effectively and fairly. Companies may face an increased procedural burden when employees are more likely to report contentious situations as violations. This requires organisations to implement effective mechanisms for verifying notifications and managing procedures to avoid unnecessarily burdening the system with false or erroneous alerts. Extending protection to reports made by employees has a number of implications for both employees and the companies themselves.
  3. In the new draft, the legislator introduces the possibility to report violations anonymously, with organisations being able to decide for themselves whether to accept such reports. However, the draft requires entities to define procedures for dealing with anonymous reports. Anonymous reports are crucial for several reasons. First and foremost, they provide whistleblowers with protection against potential reprisals such as discrimination, harassment or unfair dismissal. With anonymity, those who fear direct consequences may be more likely to report violations, increasing the likelihood that problems will be detected and resolved.This requires organisations to implement effective mechanisms for verifying reports and managing procedures to avoid unnecessarily burdening the system with false or erroneous alerts. Extending protection to reports made by employees has a number of implications for both employees and the companies themselves.
  4. In addition, the new draft law on the protection of whistleblowers devotes particular attention to the issues of compensation and redress for persons who have suffered negative consequences as a result of reporting violations. According to the current draft, a whistleblower who has been subjected to retaliatory actions is to be entitled to compensation in an amount not lower than the average monthly remuneration in the national economy in the previous year, announced for pension purposes in the Official Journal of the Republic of Poland ‘Monitor Polski’ by the President of the Central Statistical Office, or to a right to compensation.
  5. The latest draft of the Whistleblower Protection Bill includes significant changes to the way in which internal reports are filed.These changes are intended to simplify the whistleblowing process and provide greater flexibility for both whistleblowers and organisations. Considering different forms of reporting is key to the effectiveness of the whistleblower protection regime, as different circumstances may require different methods of communication. The current draft Bill, allows for oral or written reporting. Oral reporting will be able to be made by telephone or electronic means of communication.
  6. The introduction of provisions allowing whistleblowers to benefit from free legal assistance and advice in the latest draft of the Whistleblower Protection Bill is an important step towards empowering and protecting whistleblowers. It is a provision that aims to ensure that those who choose to report violations of the law are not left without support when faced with the potential consequences of their actions. The legislation aims to ensure that legal services are readily available to potential whistleblowers. This means that legal assistance should be offered in a form that is tailored to the needs of whistleblowers, such as through telephone on-call, online consultations or face-to-face meetings with lawyers.
  7. In the latest draft of the Law on the Protection of Whistleblowers, a significant change is the clarification of the provisions on internal reporting. The key element here is the new definition of the conditions that oblige legal entities to implement an internal whistleblowing procedure and follow up. The original version of the bill stipulated the obligation to implement a notification procedure for entities with at least 50 employees. The update to the draft introduces more detailed criteria to facilitate the identification of entities covered by this obligation. Under the new provisions, entities for which, as at 1 January or 1 July of a given year, at least 50 people work are required to implement an internal whistleblowing and follow-up procedure. It is important to note that this figure includes full-time employees and persons providing work on a basis other than employment (e.g. civil law contracts), provided that they do not employ other persons to perform this work. The precision in defining the criteria for the obligation to implement internal reporting procedures is a step towards a more effective and fair whistleblower protection system.
  8. In the context of the new whistleblower protection bill, the effective date of the provisions remains unchanged from the previous proposals. This means that most of the provisions of the Bill, with some exceptions, are to become effective 3 months after the date of its promulgation. The draft provides for a longer deadline of 6 months for the entry into force of selected provisions, in order to give organisations and public bodies more time to prepare to meet specific requirements. This mainly concerns:
  • the provisions governing external notifications (Chapter 4 of the Act) – the extension of the date of entry into force of these provisions gives organisations more time to adapt to the external notification system, which may require the establishment of new procedures or the adaptation of existing systems.
  • 25(1)(8) of the Act – this provision refers to the need to include in the internal notification procedure clear and easily accessible information on making external notifications. These notifications may be addressed to the Ombudsman, relevant public authorities and, where appropriate, to European Union institutions. The extended deadline is intended to allow organisations to carefully develop and integrate this information into their notification procedures.

Summary

The draft Act on the protection of whistleblowers in Poland is an important step towards building a strong system of legal protection for whistleblowers. The changes proposed in the latest version of the draft are aimed not only at adapting the Polish legal system to the requirements of the EU Directive, but also at increasing the effectiveness of whistleblower protection mechanisms and promoting an ethical culture and transparency in the operation of both the public and private sector.

Extending the scope of protection to include a broader catalogue of violations gives whistleblowers the possibility to report a wider range of irregularities, which is a response to growing needs for legal protection. The introduction of a variety of reporting methods, including oral and electronic, reflects a modern approach to communication and the availability of reporting mechanisms.

Free legal aid and counselling for whistleblowers is an important change that aims to provide support to those who choose to come forward. Thus, the draft law emphasises that a whistleblower should not be left alone to face the potential consequences of their actions.

In conclusion, the draft law on the protection of whistleblowers in Poland is a comprehensive approach to the issue of protection of whistleblowers, taking into account both the need to align with European standards and specific challenges at the national level. Thanks to this draft, Poland has an opportunity to strengthen the mechanisms for legal protection of whistleblowers, which is crucial for building citizens’ trust in institutions and promoting ethical attitudes in the workplace.

 

Authors:

Zuzanna Włoczko, legal assistant

Katarzyna Hiller, attorney-at-law

Authors

Zuzanna Włoczko

Trainee Advocate

Zuzanna Włoczko

Katarzyna Hiller

Partner, Attorney at Law, Compliance Officer, LL.M. in International Commercial Law

Katarzyna Hiller