The Whistleblower Protection Act comes into force on September 25, 2024. Who can be a whistleblower? How are they protected? What are the employer’s obligations in this area?
What is a whistleblower?
The Whistleblower Protection Act defines a whistleblower as “a person who reports or discloses information about a breach of the law obtained in a professional context”.
This definition covers employees (including temporary employees), people providing work or services for other reasons (b2b, commission, service contract, volunteer work) and people linked to companies under commercial law (agent, partner, member of the board of directors, member of the supervisory board).
However, an important condition is the professional context, which must be understood as activities related to the provision of work or services (whatever their basis) or activities in connection with the recruitment or negotiation of a position.
Form of disclosure by the whistleblower
Whistle-blowing may be internal (i.e., carried out in accordance with the internal procedure applicable at the employer in question) or external (to the ombudsman or a public authority). The whistleblower can also make a “public” disclosure, i.e. make information relating to the violation of the law public (via the Internet, for example). It is important to note that external disclosures can also be made anonymously.
Article 3 of the law sets out a list of behaviors that are deemed to be breaches of the law, and which are subject to notification or disclosure. These behaviors include, among others, activities related to corruption, environmental protection, public health or, interestingly, consumer protection. However, in the latter case, it should be borne in mind that only whistleblower reports are subject to statutory protection, and not, for example, consumers. The context of the report’s work is therefore necessary in the first instance.
Whistleblower protection – retaliation and compensation
Whistleblowers enjoy the protection of the Whistleblower Protection Act from the moment they make a report or public statement. From that moment on, the whistleblower is protected from so-called retaliatory actions. Retaliatory actions are actions carried out by an entity to which a report has been made and which interfere in a negative way in a sphere related to the person’s employment or function.
Retaliatory measures include refusal to enter into a contract (if the whistleblower is in the process of being recruited), as well as termination of a contract (which will apply to current employees). The full list of retaliatory measures can be found in Article 12 of the Whistleblower Protection Act.
This law grants protection to whistleblowers provided they have reasonable grounds for believing that the information reported is true and constitutes information about a breach of the law. It is therefore important to note that the actions of people who knowingly provide false information are not protected by the law. False information or public disclosure may constitute grounds for criminal prosecution of the person who provided the information (the discloser). In addition, if the subject suffers harm as a result of a false statement, he or she has the right to claim compensation or damages for violation of personal rights.
However, what happens if, despite the legal prohibition, the entity retaliates? In this case, the whistleblower is entitled to compensation equal to at least the average monthly wage in the national economy for the previous year. In 2024, this means compensation of at least PLN 7,155.48.
Whistleblower protection – employer obligations
The Whistleblower Protection Act introduces the obligation to set up an internal whistleblowing procedure. This obligation applies to all entities for which at least 50 people carry out remunerated activity (on whatever basis). For certain industries (e.g. employers in the financial sector, lessors, insurers, estate agents, accountancy firms), they are obliged to set up an internal reporting procedure regardless of the number of employees they employ (i.e. even if they employ fewer than 50 people).
The internal notification procedure must be implemented by September 25, 2024.
Failure to comply with this obligation is punishable by a fine (liability for having committed an offence).