On 18 October 2021, the Government Legislation Centre published a bill implementing solutions into the Polish legal system required by 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 the EU law.

There are currently works in progress regarding final wording of the act, despite the fact that 17 December 2021 is the deadline for the EU Member States to implement the directive on whistleblowers.

The draft provisions, as well as the Directive, regulate the principles concerning protection of the so-called whistleblowers, i.e. persons reporting breaches of law in the workplace. The regulations provide that the employer shall be responsible for protecting the anonymity and confidentiality of the whistleblower's data and shall ensure protection against the so-called retaliation for disclosing irregularities. The draft provisions, as well as the Directive, regulate the principles concerning protection of the so-called whistleblowers, i.e. persons reporting breaches of law in the workplace. The regulations provide that the employer shall be responsible for protecting the anonymity and confidentiality of the whistleblower's data and shall ensure protection against the so-called retaliation for disclosing irregularities.

Procedure for reporting breaches

Employer is responsible for implementing appropriate procedures by establishing an internal channel for receiving and handling reports and appointing a person or an organisational unit responsible for dealing with and following up on reports. The employer is also responsible for keeping a register of reports made by whistleblowers.

Implementing an internal procedure of reporting breaches is obligatory for employers employing at least 50 employees.

Entities from the public sector, as well as entities from the private sector employing at least 250 employees, will be required to implement the internal reporting regulations from the moment the act enters into force, so the provisions of the bill do not provide any transitional period for these entities.

Entities from the private sector employing at least 50 and less than 250 employees will be required to implement the internal reporting regulations until 17 December 2023.

Failure of the employer to establish the internal procedure for reporting breaches, or failure to establish a procedure that does not comply with the act, is subject to a fine, limitation of liberty or even imprisonment of up to 3 years.

External procedure

The bill also provides for an external way of reporting breaches.

The Polish Ombudsman has been announced as the central body responsible for receiving external reports. Furthermore, the legislation also distinguishes public authorities which will accept reports regarding breaches in areas within the scope of their activity. The bill explicitly mentions only the President of the Office of Competition and Consumer Protection as a public authority, which will accept reports from whistleblowers regarding competition and consumer protection rules.

Doubtful solutions of the bill

The Polish bill raises many controversies. Social organisations giving opinions on the bill indicate elements which, inter alia, are not compliant with the EU Directive, are too vague and require clarification by the legislator or are simply excessive and go beyond the standards indicated in the directive. The most frequently raised postulates include the issues related to:

  • extension of the vacatio legis period - the currently provided 14-day period for the act to come into force is too short for employers to take action to ensure compliance with the act,
  • clarify definitions and terms used in the act, such as a "person associated with the reporter" or an "organisationally independent entity",
  • clarify how to determine the number of the employed employees,
  • include in the provisions capital groups and all organisational units of given local government units,
  • include rules regarding processing of the data regarding the report,
  • indication of the moment from which a person is to be considered a whistleblower subject to special protection,
  • omission of operation of capital groups and organisational dependencies resulting therefrom, in particular within the scope of servicing the reporting channels for whistleblowers and the entire process of investigations (relationship between a "parent company" and "subsidiary").

As of 10 January 2022, works on the bill have reached a standstill at the opinion stage. We have been informed that due to the extensive nature of the material - the comments on the bill amount to hundreds of pages in total - the opinion stage will not be completed by the end of January. Consequently, the final content of the Polish provisions on the protection of whistleblowers is still unknown.

Author