The draft law on the protection of whistleblowers is already after the first reading in parliamentary committees. The deadline for the report is 21 May. The enacting the bill is therefore increasingly becoming a reality. It is therefore worth familiarising oneself with the key points of the draft and answering the question: what exactly is this protection of whistleblowers supposed to consist of and what impact can it have on businesses?
Who is a whistleblower?
Whistleblower is an individual, usually from within a given organisation, who, having knowledge of irregularities in the operational activities of a given entity or its individual units, decides to report these practices. These are often actions constituting an infringement of the law, e.g. practices targeting consumers, or posing a threat to the environment. However, they may also be aimed at the interests of the company itself, e.g. involving theft of the company's property by its employees or contractors.
The term whistleblower often has negative connotations in the public perception and is sometimes associated with a “snitch”. However, the concept of whistleblowing is not only about informing law enforcement authorities. From the perspective of the EU provisions, as well as the Polish draft act, the intra-organisational path for explaining irregularities occurring within the company's operational activity is equally important.
Irregularities within an organisation are usually difficult to detect for authorised parties. In many cases, without information from a whistleblower, it would be impossible or very time-consuming to detect and explain such practices.
As the whistleblower is often a single person acting against the whole smoothly functioning machine, the EU Legislature considered that providing whistleblowers with protection against retaliation is crucial for the smooth functioning of this institution. 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 is intended, on the one hand, to institutionalise whistleblowing concerning key areas of the law; on the other hand, to provide effective protection for whistleblowers in order to encourage them to report noticed practices that negatively affect the functioning of an organisation or that result in breaches of the law.
Scope of whistleblower protection
Protection of a whistleblower means prohibition of retaliatory actions against the whistleblower, attempts at such actions, or even threats of such actions against the whistleblower. The statutory definition of retaliatory action, in accordance with the guidelines arising in this regard from the Directive, is very broad. Any direct or indirect action or omission in a work-related context, directed against the whistleblower, caused by the whistleblower's making a report, which violates or is likely to violate the whistleblower's rights or is likely to cause undue harm to the whistleblower, can be considered as retaliatory action.
A retaliatory action may be considered, for example:
As can be seen from the above examples, from the perspective of the draft Whistleblower Protection Act, retaliation may concern various aspects of employment. Moreover, the catalogue of behaviours considered as retaliatory indicated in the draft is open. Therefore, in practice, it may turn out that also actions of superiors not listed in the whistleblower protection act may be deemed to harass a whistleblower because of irregularities reported by her/him.
As a rule, the Polish legislator has not provided for a special procedure for pursuing claims by whistleblowers. The relevant provisions of the Polish Labour Code apply in this respect. For example, if a whistleblower has been terminated from her/his employment contract, she/he will be able to pursue her/his claims by way of an appeal against the termination on the principles provided in this respect for all employees.
The only, yet significant, difference will be the shifting of the burden of proof to the employer that the organisational steps taken against the whistleblower were not retaliatory. In the "ordinary" case of an employee's appeal against termination, the employer must prove the truth of the reasons for termination. The burden of proof is on the employee only to the extent that she/he claims that the real reason for the termination was different from that stated in the document handed to her/him. In proceedings conducted on initiative of the whistleblower, the entire burden of proof will be on the employer – the employer will have to show not only that the reason for termination is true, but also that it does not constitute retaliation.
This is why the organisational preparedness is so important. The processes for dealing with whistleblowing should be watertight enough to be able to demonstrate that any organisational decisions in relation to whistleblowers were taken in isolation from those whistleblowing reports. It may be advisable in this case to separate the whistleblower processing units organisationally or to separate these processes outside the organisation.
All HR processes related to, for example, employee appraisal, promotion or selection of employees for training should also be sealed. At the same time, the sealing of the process should not only consist in proper planning of the process, but also in reliable observance of it in practice. Daily practice in this regard often does not reflect the picture resulting from the organisation's established procedures. For example, staff appraisals often do not reflect an assessment of the employees’ actual competence or commitment. Such practice may make it more difficult in the future to prove that organisational steps taken with regard to a whistleblower were objective in nature and not targeted at the whistleblower due to her/his role in an ongoing investigation.
In addition, the whistleblower will be entitled to compensation or damages for the retaliation suffered. In the current version of the bill, the amount of minimum compensation has been set as one times the average salary. This is slightly more than in the case of 'ordinary' employee discrimination or bullying, where the minimum compensation is one times the minimum wage. This appears to be inconsistent with the regulations in place to date.
It is worth following the legislation process in this respect. Originally, the level of minimum compensation proposed by the Legislature was to be the equivalent of twelve times the average salary. It can therefore be expected that this amount may still evolve in the course of the work on the draft.
Who will be covered by the protection?
The protection of whistleblowers starts as soon as the notification is made. From that moment on, the whistleblower gains the full guarantee of protection provided by the Act. However, it is not granted unconditionally. The whistleblower, at the time of reporting, must have reasonable grounds to believe that she/he is communicating information about a violation of the law and that the information communicated is true. If this is not the case, e.g. the 'whistleblower' makes the notification in bad faith only to obtain protection against expected termination, such protection will not be acquired.
The regulations concerning protection of employees will apply accordingly also to persons employed in a similar capacity under civil law contracts (also as part of their individual business activity). Protection will also be extended to persons assisting the whistleblower in making the report and to persons related to the whistleblower, and even to legal persons or other organisational units assisting the whistleblower or related to the whistleblower, in particular if they own or employ the whistleblower.
Such a broad coverage is the result of the minimum guarantees under the Directive. However, it may have far-reaching practical consequences. Therefore, proper organisational preparation of businesses for the implementation of the new law will be crucial.