NEW DRAFT ACT ON WHISTLEBLOWERS
Act on the protection of persons who report breaches of law
The act on whistleblowers will implement the 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 into the Polish legal system. On 12 April 2022, a new version of the draft act on whistleblowers prepared by the Ministry of Family and Social Policy1 was published on the website of the Government Legislation Center. The draft act will include the comments submitted to the original version of the draft of this act of 14 October 2021. The selected changes in the proposed regulation, important from the perspective of employers and other employing entities were indicated below.
[1] Draft act on the protection of persons who report breaches of law of April 6, 2022; the number from the list of legislative works: UC101;.
Wide catalog of entities obliged to apply the provisions of the Act
The new draft act significantly expands the catalog of entities obliged to establish the procedure for reporting breaches of law and taking follow-up actions (hereinafter referred to as the “procedure”).
The procedure will be established by a legal entity to the benefit of whom the work is perform by at least 50 persons, however not only by the employer who hires at least 50 employees.
Unfortunately, the initiator of the draft act does not define the concept of “a person performing work for a legal entity” and thus it shifts the burden of interpretation of this term onto the participants of business trading. If no changes are made to the draft act in this respect, many employing entities will find it difficult to determine whether they have an obligation to establish an internal procedure or not. In the current wording of the draft, it is not clear whether the meaning of the term “a person performing work for a legal entity” covers, apart from employees, only persons performing work under a civil law agreement, or whether the designation of this term also covers self-employed workers, interns or volunteers. In this regard, it will probably be necessary to apply other regulations, e.g. Art. 8 sec. 2a of the Act on the social security system.
The scope of application of the internal procedure broader than the original one
Until now, according to the original draft act, the whistleblower was in principle an employee. However, by the means of internal regulations, it was possible to extend this catalog, among others to the former employees, contractors, members of the management body (Article 29 sec. 2 point 1 of the draft of 16 October 2021).
According to the current draft, the legal entity obliged to establish an internal procedure will have to consider the reports from any natural person who reports information about a breach of law obtained in a work-related context, including – which is understandable – an employee, temporary employee, contractor or member of a body, but also from “a person who performs work under the supervision and management of a contractor, subcontractor or supplier“.
Clarification of the procedure of trade union consultation
The internal procedure should be established after consultation with the trade union or with all trade unions, if more than one trade union operates in the establishment of legal entity.
In the event that the trade union does not operate in the establishment of legal entity, the legal entity shall establish an internal procedure, after consultation with representatives of persons performing work for the legal entity, selected in the manner adopted by the given legal entity. This means that the selected representative group should be representative of all persons providing work for the legal entity, and thus not only employees.
At the same time, the time limits for carrying out consultations have been precisely defined, indicating that consultations last no less than 7 days and no longer than 14 days from the date of presenting the draft of internal procedure by the legal entity.
Ways of submitting notifications
The new draft act enables reporting “orally or in a paper or electronic form“. Until now the notifications could be made “in writing or orally” in accordance with the draft of 16 October 2021. This constitutes an extension of the obligatory catalog with an electronic form, and at the same time there is no need to maintain the standard written form (i.e. with a handwritten signature).
The initiator of the draft act regulated the issue of documenting oral submissions in detail:
- oral report made via recorded telephone line or other recorded voice communication system, with the consent of the declarant, is documented in the form of the recording of conversation or the transcript of conversation;
- oral report made via unrecorded telephone line or other unrecorded voice communication system is documented in the form of a detailed protocol of conversation;
- oral report made by means of a direct meeting, with the consent of the declarant, is documented in the form of a recording of the conversation or a detailed protocol of the conversation.
The declarant also obtains the right to check, correct and approve the transcription of conversation or the protocol of conversation.
It raises the question that in case of an oral report made by face-to-face meeting, its precise permanent record depends on the consent of the declarant.
No anonymous reports
On the basis of the original draft act (of October 16, 2021), the issue of admitting anonymous reports was left to the employer, which at the stage of drafting the internal reporting regulations by individual employers raised a lot of discussion.
The new draft act does not provide for the possibility of submitting anonymous reports, which applies to both internal and external reports. The justification explicitly stated that “anonymous reports will not be subject to the regulations of the Act, which means that they may be left without examination“. But there is also a regulation which indicates that – “Nevertheless, in the event that a legal entity or a public authority decides to consider anonymous reports, the relevant regulations on this issue should be included in the internal procedure of the legal entity or the external procedure of the public authority respectively”2.
Providing information about the procedure during the recruitment process
The new draft act imposes an obligation to provide the job applicant with information about the internal procedure with the commencement of recruitment or pre-contractual negotiations. The previous version of draft act required the employer to familiarize the employee with the content of the internal reporting regulations before allowing her/him to work. In order to secure its interests, we recommend that the legal entity conducting the recruitment requires the applicant to submit a declaration that he/she has read the applicable internal procedure.
Wider catalog of prohibited retaliation
One of the new forms of prohibited retaliation is the act of inflicting other non-pecuniary damage on the declarant, including damage to reputation, especially on social media. At the same time, the draft act gives grounds to conclude that such action could be taken if the employer was guided by objective and duly justified reasons, which he/she would have to prove. Therefore, if the draft in this wording took the form of an act, it would be the first regulation directly referring to actions taken by an employer against an employee in social media.
Personal data of the person who reports the breach of law
The new draft act does not require the legal entity to keep the personal data of the declarant separately from the document or other information carrier containing the notification. In the previous version of draft act, this obligation was related to the necessity to remove all personal data of the declarant from the document or other information carrier.
The new draft act also provides the shortening of the period of data storage in the register of internal declarations from 5 years to 12 months. The period of storage of personal data processed in connection with the receipt of the notification and taking follow-up measures is also shortened from 5 years to 15 months. At the same time, the new deadlines will be counted from the date of completion of the follow-up activities, and not from the date of receipt of the notification.
Effective date of the act
Pursuant to the new draft act, the act shall enter into force after two months from its promulgation.
Private entities for the benefit of whom the work is performed by at least 250 people and public entities are obliged to establish an internal procedure within one month from the effective date of the Act.
On the other hand, private entities for the benefit of whom the work is performed by at least 50 and fewer than 250 people are obliged to establish an internal procedure by 17 December 2023, thus the proposed regulation has not changed in this regard.
