The Whistleblower Protection Act – What Does It Mean for Employers?

On 25 September 2024, the Whistleblower Protection Act comes into force, imposing a range of new obligations on employers. Poland joins the European Union countries that have implemented the directive on the protection of persons reporting violations of law. The new regulations are of key importance for companies employing at least 50 people. What changes await entrepreneurs?

Definition of a whistleblower

First of all, it is worth answering the question: who exactly does the new law protect? According to the Act, a whistleblower is "a natural person who reports or publicly discloses information about a violation of law, obtained in a work-related context". This definition covers both employees hired under employment contracts and those performing work under civil law contracts.

It is also important to emphasise that the Act applies to persons who learned about the irregularities before the employment relationship was established (e.g. during the recruitment process), as well as former employees and contractors of the company. This means that protection must also extend to candidates and people who no longer work for the company.

Subject matter of a whistleblower report

To understand the real impact of the new law on the operations of Polish companies, it is worth familiarising yourself with the categories of reports covered by the Act. In accordance with the EU Directive, reports from the following ten areas are covered by legal protection:

• public procurement,
• financial services, products and markets, as well as prevention of money laundering and terrorist financing,
• product safety and compliance with requirements,
• transport safety,
• environmental protection,
• radiological protection and nuclear safety,
• food and feed safety, animal health and welfare,
• public health,
• consumer protection,
• protection of privacy and personal data, and network and information systems security.

In addition, the Polish draft Act includes four further areas:

• corruption,
• financial interests of the State Treasury of the Republic of Poland, local government units, and the European Union,
• the internal market of the European Union, including public law rules on competition and state aid, and the taxation of legal persons,
• constitutional freedoms and human and civil rights — occurring in the relations of individuals with public authorities and not related to other specified areas.

With knowledge of these categories, we can move on to the process of implementing reporting procedures.

Implementation of internal reporting procedures

A whistleblower may make an external report (to the Ombudsman or an appropriate public authority), or an internal report. Under the new regulations, every organisation employing a minimum of 50 workers is required to implement procedures enabling the reporting of irregularities within the company. The provisions cover both employees hired under employment contracts and persons performing work under civil law contracts.

The key elements of these procedures are:

• designating a unit responsible for receiving reports and taking follow-up action,
• ensuring confidentiality and protecting the identity of whistleblowers,
• conducting investigations into reported violations,
• implementing mechanisms to protect whistleblowers against retaliatory actions.

Channels for reporting irregularities

The Act requires employers to provide several types of reporting channels that will be easily accessible to all employees and persons cooperating with the organisation. These may include both electronic channels and oral reports, e.g. by telephone or during a face-to-face meeting.

Employers are also obliged to allow anonymous reports to be submitted, if they deem this appropriate. However, regardless of company policy, if the identity of a whistleblower who initially acted anonymously is revealed, they must be granted the full protection provided for in the Act.

Protection of whistleblowers against retaliation

One of the most important aspects of the Act is the protection of whistleblowers against retaliatory actions on the part of the employer. This protection applies from the moment of reporting the irregularity and covers, among other things:

• termination or dismissal without notice of the employment relationship,
• refusal to establish an employment relationship,
• reduction of pay,
• suspension of promotion or being passed over for promotion,
• transfer to a lower position,
• suspension from performing employment or service duties,
• reassignment of the whistleblower's previous duties to another employee,
• other manifestations of unfavourable or unfair treatment.

Furthermore, the burden of proof that the actions taken were not retaliatory rests with the employer. Additionally, persons associated with the whistleblower, as well as those who assisted in making the report, are also protected.

Penalties for employers

The Act provides for severe penalties for failure to comply with the obligations arising from it. Offences under the Act include:

• preventing or significantly impeding the making of a report,
• taking retaliatory action,
• disclosing the identity of the whistleblower or associated persons,
• failure to establish an internal reporting procedure.

Employers who prevent the making of a report or take retaliatory action against whistleblowers may be punished with a fine, restriction of liberty, or even imprisonment for up to 3 years. Slightly less severe penalties apply to disclosing the identity of a whistleblower and failing to establish an internal reporting procedure.

Conclusions for entrepreneurs

The new Act places employers under an obligation not only to implement appropriate procedures, but also to ensure that they are effectively enforced. It is worth starting preparations now to adapt internal regulations to the new requirements. The key is for the procedures to be transparent and in line with best practices, which will allow for a rapid response to irregularities and minimise risk for the company.