Who is a whistleblower?
It is difficult to discuss the whistleblower law without defining who a whistleblower really is. Until June 2024, Polish law lacked a definition of a whistleblower – for this reason we used the so-called “practical definition”. practical definition, which was based on the English term “whistleblower.”
Signalman – customary definition
According to the practical definition, a whistleblower means a person or entity that informs of the possibility of a misdemeanor, or crime, by an entity with which the whistleblower has a business and/or contractual relationship.
A whistleblower usually cooperates with the judiciary, and is granted whistleblower status if representatives of the prosecutor’s office determine that the person’s actions could put him or her in danger of losing his or her job or expose him or her to other negative consequences.
Whistleblower – legal definition
As of June 2024, we have an official explanation of the term, and there are significant differences (although the core remains the same).
According to Art. 4 of the Law of June 14, 2024. on the protection of whistleblowers, a whistleblower is an individual who reports or publicly discloses information about a violation of the law, obtained in a work-related context. A whistleblower can thus be:
- employee (including temporary),
- a person providing work on a basis other than employment (e.g., under a civil law contract),
- an entrepreneur associated with the subject of the notification (e.g., a service contractor for the subject),
- proxy,
- shareholder,
- partner,
- intern,
- volunteer,
- Apprentice.
However, this is not the end of the list. Art. 4. ust. 1 pt. 12 also speaks of officers (e.g., Police, Internal Security Agency or Customs and Excise Service), while Art. 4. Para. 1 pt. 13 also includes soldiers in this group.
Paragraph 2 of the said article is also extremely important. According to its wording, a whistleblower may also be a person who reports or publicly discloses information about violations of the law before the establishment of an employment relationship (or other legal relationship that is the basis for the provision of work, services or functions in a legal entity to the subject of the report) or already after their termination. In practice, this means that an employee, trainee or service contractor can report violations of the law not only during the course of the relationship, but also before it is established or after it is terminated. Interestingly, the law as it currently stands does not specify within what timeframe from the occurrence of a violation of the law a situation must be reported or made public in order to obtain whistleblower status.
Key findings of the whistleblower directive
October 23, 2019. The European Parliament and the Council of Europe have adopted a directive on the protection of whistleblowers – hereafter we will refer to it as the Whistleblowers Directive. The purpose of issuing the document is to extend legal protection to all whistleblowers taking place at workplaces.
Why is legal protection for whistleblowers needed?
The need for a directive on whistleblowers, and consequently for corresponding laws in the national laws of EU member states, came from the circumstances described at length in the introduction to the document. It reads, among other things, that:
By reporting violations of Union law that are harmful to the public interest […] “whistleblowers” […] play a key role in uncovering and preventing such violations and protecting the public good.
However, potential whistleblowers often decline to report their concerns or suspicions for fear of retaliation. As a result, there is growing recognition, both at the EU and international level, of the importance of ensuring balanced and effective protection for whistleblowers.
In other words, the lack of adequate legal protection for whistleblowers means that these individuals often choose not to report irregularities they witness – usually out of fear of negative consequences from their employer.
Important!
It is worth remembering that – according to the directive – a whistleblower does not have to be an employee of an entity with an employment contract to report irregularities committed by the entity.
In fact, all that is required is any contractual relationship (such as a cooperative, commission, volunteer or internship agreement).
Three channels of information
Paragraph 45 of the whistleblower directive, in turn, mentions the possibility for whistleblowers to make reports through three channels of information: internal, external or public disclosure. What are the differences between these channels?
- internal reports – this provision refers to a situation in which an employee reports irregularities within the organization – for example, to his immediate superior.
Under the draft law on the protection of whistleblowers (about which more later in this article), companies will be required to establish internal procedures for receiving such reports.
- External reporting – under this term is reporting external to the employer. Each EU member state is tasked with designating a competent authority or institution to accept external applications. The institution will also be required to take follow-up actions appropriate to the situation, in order to resolve the problem and ensure the protection of whistleblowers.
- public disclosure – the third channel of notification provides protection to whistleblowers who have made information about violations of the law public. However, it should be remembered that the public disclosure route should only be chosen if there has been no appropriate follow-up after internal and external or external notification.
Public disclosure can be, for example, the transmission of information about irregularities to the public, trade unions or other organizations through social media or traditional media.
When can a whistleblower benefit from public disclosure?
Paragraph 79 of Directive 2019/1937 reads:
Persons making public disclosures should be eligible for coverage where, despite internal and external reporting, the violation has still not been remedied, for example, where the violation has not been adequately assessed or investigated, or no appropriate remedial action has been taken.
What violations can whistleblowers report?
The directive on the protection of whistleblowers specifies that violations reported by whistleblowers can involve domestic administrative law, criminal law and other types of irregularities. Examples of such violations include the employer’s failure to comply with transportation safety rules, hiring employees despite lacking the necessary credentials, tax fraud or bullying. In other words: any violation of national or EU law can be reported by a whistleblower.
However, the EU directive places special emphasis on reports of violations in areas:
- public procurement,
- services, products and financial markets,
- Prevention of money laundering and terrorist financing,
- product safety,
- transportation security,
- environmental protection,
- Food and feed safety,
- animal health and welfare,
- public health,
- consumer protection,
- privacy and data protection.
Law on whistleblowers – what is it and who does it apply to?
After long years of legislative work, today we can finally say that Poland is ready to adopt the provisions of the Directive on the protection of whistleblowers under EU law. On June 24, 2024, the final version of the document, already drafted after accepting the amendments suggested by the Senate, was published in the Journal of Laws. A few days earlier, the law was signed by President Andrzej Duda. According to the latest findings (as of August 6, 2024), the law is expected to enter into force on September 25, 2024.
Law on whistleblowers – the most important assumptions
The law on whistleblowers is intended to provide legal protection to all those who choose to report irregularities, wrongdoings or crimes at workplaces.
In a word: the document will implement the objectives of EU Directive 2019/1937. Here are some of the most important assumptions present in the law:
- The Whistleblower Protection Law deals with whistleblowers and clarifies the term. A whistleblower may be a person who is associated with the abusive entity or organization not only by an employment contract, but by any legal or factual relationship. What’s more, the notification can be made not only during the course of the relationship in question, but also before it begins or after it ends (for example, when there has already been a termination of employment).
- The condition for the granting of whistleblower status will be that notifications are made in a manner consistent with the provisions of the law.
- The Law on Whistleblowers requires businesses to create procedures to facilitate internal reporting, ensure protection of whistleblower data and document reports.
We describe this issue in detail later in the article.
- External applications in Poland will be accepted by the Ombudsman. The RPO will also have a duty to ensure whistleblower protection and follow-up.
Law on whistleblowers – employer’s obligations
Any entity that is obliged to implement whistleblower protection procedures must make a number of changes to its organization. However, let’s start with which companies have such an obligation.
Important!
The obligation to implement protective procedures does not extend to all entrepreneurs, but only:
- Companies with at least 50 employees (FTE),
- public sector entities.
Although the above list is very short, it also includes an exception – authorities of municipalities or counties with fewer than 10,000 residents are not required to implement the above-mentioned procedures.
It is also worth remembering that the number of 50 employees for the purposes of calculating the criterion also includes persons providing work for remuneration on a basis other than employment, but only on condition that the entity does not employ other people for such work.
So what are the employer’s responsibilities?
- Draw up an internal procedure for making reports of violations of the law and taking follow-up action – these regulations must comply with the requirements found in Chapter 3 (Articles 23-29) of the Law on the Protection of Whistleblowers,
- Establish channels for receiving reports and inform employees, co-workers and persons who have a business relationship with the employer about the availability of these channels,
- Designating an impartial internal organizational unit to follow up, which means verifying, handling and clarifying applications,
- recording and documenting reports – keeping recordings or transcripts of conversations conducted with whistleblowers via telecommunications devices (with their consent, of course), taking minutes (in the case of oral reports), or keeping copies of written reports.
Another obligation of businesses and the RPO will be to document reports made by whistleblowers – in the case of oral reports, it will be necessary to create accurate transcriptions of the conversations during which the report was made.
Summary
The law of June 14, 2024. on whistleblower protection is a document that has the potential to change a lot about whistleblowing. In many companies there are not only legally required procedures, but also incentives to use the possibility of reporting problems internally. Companies know that a good portion of problems can be dealt with internally so as to satisfy each party. What’s more – the detection of irregularities can often lead to savings or productivity gains, and, above all, give the company a chance to correct mistakes before the consequences become too severe.
As early as September 25, 2024, the law goes into effect and will start protecting whistleblowers. But the question remains: how will the new regulations work in practice? That, however, we will find out no sooner than after the next few months.
