What signals does our government send us regarding whistleblower protection? Is this issue still valid or has it been obsolete for a long time?

Work has been ongoing for several years on the implementation of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (the so-called Whistleblower Protection Directive). Currently, another (already 9th) draft law on the protection of persons who report breaches of the law (hereinafter referred to as the “Whistleblower Protection Law”) has been presented at the Government Legislative Centre. This draft provides for a number of obligations that will be imposed on employers. When will these obligations come into force and what are the consequences of the Government’s tardiness in implementing EU law? We will try to answer these questions in the article below.

Whistleblowers – who are they and do they always need to be protected?

Let’s start with a brief description of who a whistleblower actually is. This role stems directly from the English word “whistleblower”. This is a person who detects signs of misconduct in an organisation or a workplace and reports them to his or her immediate supervisor, without legal consequences.

Why was the whistleblower function created? A whistleblower appeared as a response to the need to have someone in the company who would be obliged to report, on the one hand – idleness, and on the other – breaches that may indicate a violation of internal regulations or applicable laws.

According to the provisions of the EU Directive, a “reporting person” (or, colloquially speaking: a “whistleblower”) is any “natural person who reports or publicly discloses information on breaches acquired in the context of his or her work-related activities” (Article 5(7) of the Directive).

The draft Polish law on the protection of whistleblowers does not include such a definition in its provisions. However, in accordance with Article 4(1) of the draft: “The law applies to a natural person who reports or publicly discloses information about a breach of the law acquired in a work-related context (…)”. This provision also specifies the list of persons who, when reporting “in a work-related context”, may be covered by the protection provided for in this regulation. These include:

• an employee, also when the employment relationship has already ended;
• a person applying for employment who acquired information about a breach of the law during the recruitment process or negotiations preceding the conclusion of the contract;
• a person performing work on a basis other than an employment relationship, including a civil law contract;
• an entrepreneur;
• a shareholder or partner;
• a member of the body of a legal person;
• a person performing work under the supervision and direction of a contractor, subcontractor or supplier, including on the basis of a civil law contract;
• a trainee;
• a volunteer.

The Polish draft refers to all these persons who report a breach of the law that they became aware of in connection with their work-related activities as “reporting persons”.

The aim of the Directive is to protect individuals who, due to their work, will learn about breaches of regulations (e.g. in the field of public procurement, taxes or consumer protection) and decide to expose them. The Directive assumes that these individuals will not be disadvantaged as a result of such actions. For example, they will not lose their job and will be able to avoid court and disciplinary proceedings for defamation or infringement of personal interests. This protection covers not only permanent employees, but also other forms of employment (e.g. civil law contracts). In the event of a dispute, it will be necessary to prove that the termination of the contract was not retaliation for reporting a breach of the law.

However, it should be borne in mind that the condition for a whistleblower to enjoy the protection provided for in the draft law is the existence of sufficient grounds to recognise that the reported (disclosed) information is related to the public interest and is therefore also true at the time of its reporting (disclosure) and concerns a breach of the law.

EU guidelines on whistleblower protection – are they binding on Polish entrepreneurs?

Article 21(1) of the Directive clearly states the obligation of all European Union Member States to enforce the laws, regulations and administrative provisions necessary for its implementation by 17 December 2021. Meanwhile, we still do not have any law or even know its final draft.

An EU directive is one of the main legal acts issued by the EU institutions. Pursuant to Article 288 of the Treaty on the Functioning of the European Union, in order for the EU to exercise its competences, the institutions must adopt regulations, directives, decisions, recommendations and opinions.

Instead of being binding in their entirety like regulations, directives are only binding as to the results provided for in the directive. In other words, EU directives are binding on the Member States in terms of the objectives they set, but national legislators are free to choose the means by which these objectives are to be achieved within their territory. A directive is therefore not directly binding on citizens.

What about the Polish law? Will its implementation result in new obligations for employers?

On 1 August 2023, the ninth version of the draft law on whistleblower protection was published on the website of the Government Legislation Centre. The draft law aims to incorporate the European Union Directive 2019/1937 into the legal system and provide a mechanism to protect the persons who want to report fraud or misconduct in the workplace.

As a reminder, the draft is delayed by almost two years (the Directive’s implementation deadline is 17 December 2021) for entrepreneurs employing more than 250 employees, while for private companies employing from 50 to 249 employees, the Directive sets a deadline of 17 December 2023. At the time of publication of the draft, Poland was one of two countries, along with Estonia, that had not yet implemented the Directive.

Is there a chance that this law will be adopted by the current parliament? Legislators made it clear that this law must be adopted as soon as possible, especially in the face of the pending EU case against Poland. It can be concluded from the letter attached to the draft that it is ready for adoption by the Council of Ministers. However, it should be remembered that the draft has not even been submitted to the Sejm yet, and the legislative process has several stages that will take at least several weeks.

Under the current draft law, legal entities within its scope are obliged to:

• implement procedures for whistleblowing and follow-up. The implementation of such procedures involves the obligation to consult trade unions or representatives of persons performing work for the legal entity;
• at the beginning of recruitment or negotiations before concluding an employment contract, provide information on whistleblowing procedures to persons applying for a job under an employment contract or other employment relationship; conduct investigations into submitted applications;
• ensure the correct procedure for whistleblowing in such a way as to ensure that unauthorised persons do not have access to the reported information;
• keep a register of internal reports;
• appoint a team responsible for the investigation. However, the draft provides for the possibility of authorising an external entity to handle internal reporting on the basis of a contract.

Whistleblower protection as an element of the sustainable development strategy. How does whistleblower protection impact sustainable development?

Sustainable development is a global challenge that aims to achieve a balance between economic, social and ecological aspects. The sustainable development goals, as defined by the United Nations as part of the 2030 Agenda, cover issues such as poverty eradication, sustainable economic development, environmental protection, health and education.

Effective implementation of a whistleblowing system may contribute to achieving specific sustainable development goals, such as:

• Combating corruption and abuse: Whistleblowers often expose cases of corruption and abuse in organisations. Eliminating corruption is crucial to economic development and ensuring fair distribution of resources.
• Disclosing environmental violations: As part of the sustainable development goals, it is important to monitor and report environmental violations. Whistleblowers play a role in detecting activities that are harmful to nature.
• Human rights protection: Whistleblowers often report violations of human rights. Promoting respect for these rights is key to sustainable development.
• Improving corporate social responsibility: The actions of whistleblowers may encourage companies to take a more responsible approach to management and affect their impact on society and the environment.

Whistleblower protection and the pursuit of sustainable development are closely linked. Whistleblowers play a key role in exposing wrongdoing and supporting fair, ethical and sustainable development. Collaboration and an appropriate legal framework underpin this important effort.

It is worth starting implementation today

Despite the tardiness of the Polish legislator, it is worth considering the effective implementation of solutions that enable reporting breaches in our organisation today. Such solutions have a direct impact on the achievement of the organisation’s business objectives and increase its credibility in the eyes of stakeholders. If you are wondering how to carry out such an implementation, please contact us and we will be happy to support you in this process!

Authors:
Katarzyna Hiller, Attorney at Law
Zuzanna Włoczko, Legal assistant