Who is a whistleblower?
It is difficult to discuss the whistleblower law without defining who a whistleblower really is. Currently, we do not have a legal, statutory definition of a whistleblower, because to date (as of August 31, 2022) the Law on the Protection of Whistleblowers has not been implemented. There is, however, a practical definition, stemming from an analogy with the English term “whistleblower.”
Signalman – customary definition
A whistleblower is 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.
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 document is designed 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 through social media, traditional media, trade unions or other organizations.
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.
Law on whistleblowers – what is it and who does it apply to?
Before we delve into the details of the Law on the Protection of Whistleblowers, which is expected to come into force in Polish law, it is worth noting that currently (as of August 31, 2022) we only have a draft law on the protection of whistleblowers – the legislative process is still underway.
How is the legislation of the whistleblower protection law going?
The current – dated July 7, 2022 – version of the draft is already its fourth iteration, and the planned date of adoption of the document by the Council of Ministers is currently estimated for the third quarter of 2022. The bill is numbered UC101, and all information about the legislative process can be found on the pages of the Government Legislation Center.
The last update was on August 8, 2022, at which time the bill was referred to the Committee on European Affairs.
The draft law on whistleblowers – key 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 latest bill:
- 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 draft law on whistleblowers in its current form requires businesses to create procedures to facilitate internal reporting and ensure the protection of whistleblowers’ data.
- External applications in Poland will be accepted by the Ombudsman. The RPO will also have a duty to ensure whistleblower protection and follow-up.
- 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.
We will know more details when the whistleblower bill comes into effect – the exact date of this event, however, is unknown. However, the nature of the latest changes to the bill – mostly cosmetic – indicates that the work is getting closer to completion.
