In response to the European Parliament and Council Directive (EU) 2019/1937 of October 23, 2019 on the protection of persons who report breaches of Union law, on 14 June 2024 Poland has adopted the Whistleblower Protection Act. The new legislation will come into force on 25 September 2024. Due to scope of obligations imposed on entrepreneurships, it will require significant effort to implement by businesses.
This legislation, following the above directive, aims to ensure appropriate mechanisms for the protection of individuals reporting legal violations. The new regulations impose several new obligations on entrepreneurs to create a safe environment for whistleblowers and ensure the transparency and effectiveness of reporting procedures. Below are the key obligations imposed on entrepreneurs by this act. Below please find summary of key requirements and obligations arising from the new law.
- Establishing and Maintaining Internal Reporting Channels
Entrepreneurs employing at least 50 employees are required to establish internal channels for reporting violations. The number of 50 persons performing paid work for a legal entity includes full-time employees or persons providing paid work on a basis other than an employment relationship, if they do not employ other persons for this type of work, regardless of the basis of employment. The above threshold does not apply to a legal entity conducting business activity in the field of financial services, financial products and financial markets and counteracting money laundering and terrorism financing, transport security, and environmental protection. These channels must be easily accessible, secure, and guarantee the confidentiality of the whistleblower. Reports can be made in writing, verbally, or electronically. This means in practice that e.g. reports may be provided during meetings (verbally).
- Designating a Responsible Person for Receiving Reports
Entrepreneurs must designate a person or organizational unit responsible for receiving whistleblower reports. This person should have the appropriate qualifications and knowledge to ensure professional and reliable handling of reports and the initiation of appropriate follow-up actions. Also, third parties may provide services of receiving whistleblower reports on behalf of entrepreneurship.
- Registration and Analysis of Reports
Each report must be registered and subjected to an initial analysis to assess its validity and the necessity for further action. Entrepreneurs should maintain a record of reports, including the date of the report, the subject of the report, and the actions taken. This record must be kept in a manner that ensures the protection of personal data and the confidentiality of whistleblowers. To receive and verify internal reports, take follow-up actions and process data personal data, only persons with written authorization may be admitted by legal entity. Authorized persons are obliged to maintain confidentiality regarding information and personal data obtained as part of the receipt and verification of reports, and to take follow-up actions, also after the termination of the employment relationship or other legal relationship under which they performed this work.
- Follow-up Actions
After the initial analysis, the entrepreneur is required to take appropriate follow-up actions. This may include an internal investigation, organizational changes, or referring the matter to the relevant authorities. All actions must be carried out with due diligence and as promptly as possible. It is unclear whether third parties can be engaged in investigations. According to the new legislation, the internal reporting procedure identifies an impartial internal entity or person within the legal entity’s organizational structure who is authorized to take follow-up actions, including reviewing the internal reports and further communication with the whistleblower, including requesting additional information and providing feedback to the whistleblower; this function may be performed by an internal organizational unit or “person referred to in point 1” (meaning: “an internal organizational unit or a person within the organizational structure of a legal entity, or an entity external, authorized by the legal entity to receive internal reports”, if they ensure impartiality).
- Informing the Whistleblower of Actions Taken
The entrepreneur is obliged to inform the whistleblower about the actions taken in response to the report. The internal reporting procedure specifies the maximum deadline for providing feedback to the whistleblower, not exceeding 3 months from the date of confirmation of receipt of the internal report or – in the event of failure to provide confirmation due to lack of address of the whistleblower – 3 months from the expiry of 7 days from the date of making the internal report, unless the whistleblower did not provide the contact address for which one should provide feedback.
- Protecting Whistleblowers from Retaliation
No retaliatory action or attempt or threat of such action may be taken against the whistleblower. If the work was, is or is to be provided based on an employment relationship, no retaliatory actions may be taken against the whistleblower, including in particular:
1) refusal to establish an employment relationship;
2) notice or termination without notice of the employment relationship;
3) failure to conclude an employment contract for a fixed period or an employment contract for an indefinite period after the termination of the employment contract for a trial period, failure to conclude another fixed-term employment contract or failure to conclude an employment contract for an indefinite period after termination of the fixed-term employment contract – if the whistleblower had a reasonable expectation, that such an agreement will be concluded with him;
4) reducing the amount of remuneration for work;
5) suspension of promotion or omission from promotion;
6) omission when granting work-related benefits other than remuneration or reducing their amount
benefits;
7) transfer to a lower job position;
8) suspension from performing employee or official duties;
9) transferring the existing whistleblower duties to another employee;
10) unfavorable change in the place of work or working time schedule;
11) negative assessment of work results or negative opinion about work;
12) imposition or application of a disciplinary measure, including a financial penalty, or a measure of a similar nature;
13) coercion, intimidation or exclusion;
14) mobbing;
15) discrimination;
16) unfavorable or unfair treatment;
17) withholding participation or omission from selection for participation in training to improve professional qualifications;
18) unjustified referral for medical examinations, including psychiatric examinations, unless separate provisions provide for the possibility of referring the employee to such examinations;
19) action aimed at making it difficult to find a job in a given sector or industry in the future based on an informal or formal sector or industry agreement;
20) causing financial loss, including economic loss, or loss of income;
21) causing other non-material damage, including infringement of personal rights, particularly the good name of the whistleblower.
- Trade Unions or Representation of Employees Consultations
The legal entity establishes the procedure for internal notifications after consultations with the company trade union or company trade unions, if in the legal entity there is more than one company trade union organization, or representatives of persons providing work for a legal entity, selected in accordance with the procedure adopted in the legal entity, if there is no company trade union organization there. Consultations last no less than 5 days and no longer than 10 days from the date of presentation by the legal entity of the draft internal reporting procedure.
Conclusion
The adoption of the Whistleblower Protection Act in Poland is a significant step towards increasing transparency and ethics in business. It will also be a challenge for businesses operating in Poland, as entrepreneurs must adapt their internal procedures to the new requirements to ensure the effective functioning of the reporting system and the protection of whistleblowers.
The new legislation will come into force on 25 September 2024.