On 26 February, another bill on the protection of whistleblowers was submitted to the Sejm under a new title: the “Whistleblowers Act”. The bill is intended to implement Directive 2019/1937 of the European Parliament and of the Council (EU) of 23 October 2019.
As the deadline for aligning Polish legislation with EU law expired more than two years ago (i.e. on 17 December 2021), the Ministry of Family, Labour and Social Policy (which drafted the new bill) requested that the bill be considered as a matter of urgency. The consultation phase is currently underway, with the State Labour Inspectorate and the Ombudsman, among others, having already presented their positions.
Let us take you through the main changes in the new bill.
Detailed solutions regarding the status of whistleblowers
Compared to the previous versions of the act, the list of persons entitled to protection in connection with their reporting or public disclosure of irregularities, i.e. the so-called whistleblowers, has not changed.
Whistleblowers will be able to benefit from protection under the law from the time they report or publicly disclose information if they have reasonable grounds to believe that such information is:
- True at the time it is reported or publicly disclosed; and
- Evidence of a breach of the law
The authority responsible for the follow-up of a report is obliged to issue a certificate confirming the whistleblower’s protection no later than one month from the date of receipt of the whistleblower’s request.
A whistleblower who experiences retaliation is entitled to compensation in an amount not less than 12 times the average national monthly salary from the previous year, determined in accordance with the relevant legislation.
Extension of the list of breaches subject to the act
An important change is the extension of the subjective scope of application of the whistleblower provisions to the following areas:
- Human and civil liberties and rights
- Human trafficking
- Labour law
- Corruption
At the same time, the new rules do not apply to breaches of the law in the following areas:
- contracts in the field of defence and security, as defined in Article 7(36) of the Public Procurement Law of 11 September 2019 (Journal of Laws of 2023, items 1605 and 1720), to which the provisions of this act do not apply,
- offset agreements concluded on the basis of the Act of 26 June 2014 on certain agreements concluded in connection with the performance of contracts fundamental importance for State security (Journal of Laws of 2022, item 1218) and other measures taken to protect essential or material interests of State security pursuant to Article 346 of the Treaty on the Functioning of the European Union
Changes in internal reporting procedures
Internal reporting is the oral or written communication by a whistleblower of a breach of law, reported to a business with at least 50 workers as at 1 January or 1 July of the relevant year. In addition, it has been clarified that the number of 50 workers includes full-time employees or persons engaged in paid work on a basis other than employment if they do not employ other persons, regardless of the basis of employment.
This threshold does not apply to undertakings engaged in the following activities:
- Financial services, products and markets
- Prevention of money laundering and terrorist financing
- Transport safety
- Protection of the environment
which fall within the scope of the Union acts listed in Parts I.B and II of the Annex to the Directive.
Within three months of the act coming into force, companies will be required to develop internal reporting and follow-up procedures. These procedures will be set out in internal company documents in accordance with the detailed rules laid down in the legislation. One of the mandatory elements of these procedures, according to the proposed change, will be the determination of the procedure for dealing with anonymous reports of violations.
As in the previous version of the bill, companies will be obliged to consult the trade unions or representatives of workers on the content of internal reporting procedures and follow-up measures within a period of no less than 5 days and no more than 10 days from the date on which the draft was submitted to them. The internal reporting procedures will enter into force 7 days after they have been made known to the workers, in the manner customary to the employer concerned.
Companies will still be required to keep records of breaches and will be the controllers of the personal data in those records.
Modified procedure for external reporting
External reporting occurs when a whistleblower reports a breach to a public authority.
The Ombudsman will be responsible for receiving such reports and providing support measures.
The Ombudsman’s main tasks will be to:
- Establish a procedure for receiving external reports
- Receive these reports
- Handle external reports of violations of human and civil rights and liberties
- Develop a procedure for handling anonymous reports of violations
- Conduct a preliminary review of internal reports and forward them to the appropriate authorities for follow-up
- Keep a record of external reports
- Ensure public access to information and provide advice on rights and remedies
The Ombudsman will be the only public authority responsible for receiving external reports from whistleblowers and forwarding them to public authorities after an initial review. The Ombudsman will also make the final decision in the case of disputes over competence between public authorities. Such decisions cannot be appealed.
Personal data and documents processed in connection with a report will be kept by the Ombudsman for a period of 12 months from the end of the calendar year in which the report was submitted to the competent authority.
Planned date of entry into force of the new rules
According to the bill, the new provisions will enter into force 3 months after the date of promulgation, with the exception of the provisions of Chapter 4 (on external reporting), which will enter into force 6 months after the date of promulgation.
However, the enactment of the law in the wording proposed by the Ministry of Family, Labour and Social Policy is uncertain.
In fact, the State Labour Inspectorate criticised the extension of the material scope of the act to include labour law violations, arguing that the introduction of such a significant change without the possibility of discussing it in advance in consultations and pointing out its consequences cannot be considered appropriate for the proper functioning of this legal regulation and thus for the effective operation of the State Labour Inspectorate.
In addition, the Ombudsman expressed a negative attitude towards some of the solutions, stressing that the bill grants the Ombudsman competences that do not fall within the scope of its constitutional tasks and for which it does not have the legal and procedural instruments allowing for the proper implementation of these competences. This applies in particular to the conduct of investigations, the purpose of which would be to analyse allegations of violations of the law by private entities that are not public authorities.
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