26.06.2024

Whistleblower Protection Act – businesses with more than 50 employees will have to make changes!

The Law on the Protection of Whistleblowers will enter into force three months after its publication in the Official Gazette, i.e. on 25 September 2024, except for the provisions on external reporting, which will not take effect until 25 December 2024. What is worth knowing about this law before it enters into force?

 

Who is a whistleblower?
Under the Whistleblower Protection Act, 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 be: an employee, a temporary employee, a person providing work on the basis of a contract other than an employment contract, an entrepreneur, a proxy, a shareholder or a partner, a member of a body of a legal person or an organisational unit without legal personality, a volunteer, an intern, an apprentice, a soldier and a member of other uniformed services such as the Police or the Internal Security Agency.

 

What irregularities can a whistleblower report?
As set out in the Whistleblower Protection Act, a whistleblower may report irregularities consisting of a violation of the law through an unlawful act or omission or aimed at circumventing the law, relating to areas such as: corruption, public procurement, financial services, products and markets, anti-money laundering and terrorist financing, product safety and compliance, transport safety, environmental protection, radiological and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, privacy and personal data protection, security of information and communication networks and systems, financial interests of the State Treasury of the Republic of Poland, of a local self-government unit and of the European Union, the internal market of the European Union, including public law principles of competition and state aid and taxation of legal persons, and, in addition, constitutional freedoms and rights of a human being and a citizen – occurring in relations of an individual with public authorities and not related to other areas. In addition, this catalogue may be extended to include violations relating to internal company regulations or ethical standards that have been established by the entity in question. This may include, for example, regulations relating to labour law issues, which, to a certain extent, reflect regulations contained, inter alia, in the Labour Code. However, this is optional and, therefore, the introduction of the possibility of reporting in this respect is optional and depends solely on the will of the entrepreneur.

 

Why was labour law excluded from the Act?
The amendments made during the legislative process to the Act by the Senate and adopted by the Sejm arouse a lot of emotion, because before the Senate presented its position, the catalogue of areas in which one could report irregularities and count on being protected under the above-mentioned Act included 18 items. The deleted item that is not included in the whistleblower protection law passed on 14 June 2024 by the Sejm is ‘labour law’. The votes on this procedure are divided. Some parliamentarians considered the inclusion of labour law as pointless, as the Labour Inspectorate is responsible for monitoring compliance with labour law. In addition, these people emphasised that the Law on the Protection of Whistleblowers, in order to fulfil its task, i.e. to implement Directive (EU) 2019/1927, does not need to include violations concerning labour law. On the other hand, in the opinion of the opponents of the amendment made, the Law on the Protection of Whistleblowers could, in its previous wording, not only help employees to exercise the rights to which they are entitled without fear of losing their jobs or other retaliation from employers, but also help entrepreneurs who, thanks to the strengthened protection of whistleblowers, would get rid of competition in the market that acts contrary to the letter of the law.

 

Who is affected by the implemented regulations?
The Law on the Protection of Whistleblowers implies the need to create whistleblowing channels that would allow the fulfilment of the obligations under the Law. This obligation applies to legal entities for which, as at 1 January or 1 July of a given year, at least 50 persons are gainfully employed. The number of such persons includes full-time employees or persons performing work for remuneration on a basis other than employment, if the enterprises do not employ other persons for such work, regardless of the basis of employment. However, the threshold of 50 persons does not apply to legal entities carrying out activities in the fields of financial services, products and markets and anti-money laundering and terrorist financing, transport safety and environmental protection covered by the European Union acts listed in Parts I.B and II of the Annex to Directive 2019/1937. Failure to establish notification channels by entities meeting the aforementioned criteria entails the risk of being fined.

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