26 April 2024

Applicable scope of the law on protection of whistleblowers

On 17 April 2024, another bill on the protection of whistleblowers was submitted to the Lower House of Parliament (Sejm). The law is intended to implement the Directive of the European Parliament and of the Council (EU) 2019/1937 of 23 October 2019 on the protection of whistleblowers into the Polish legal order. After more than two years of work, at this session the government adopted what seems to be the final version of the draft.

Who will be covered by the regulations on internal notifications?

The published bill proposes that the provisions on internal notifications apply to legal entities for which at least 50 people are performing paid work as of 1 January or 1 July of a given year.

A legal entity is defined at the beginning of the law as a private or public entity.

According to the draft, a private entity can be an individual running a business, a legal person, an unincorporated organisational unit to which the law grants legal capacity, or an employer, if they are not public entities.

Public entities, in turn, are public finance sector units, as well as other state-controlled organisational units (for a detailed enumeration, see the Law of 11 August 2021 on Open Data and Reuse of Public Sector Information). Such a broad definition meets the requirements of the Directive.

How do you determine employment status?

As mentioned above, the obligation to implement an internal notification procedure is to depend on the number of people performing paid work for the entity. The 50-person threshold includes:

  • Employees (in employment) on a full-time equivalent basis; and
  • Persons providing work for remuneration on a basis other than an employment relationship, if they do not employ other persons for such work, regardless of the basis of employment (e.g., persons on commission contracts, specific task contracts, B2B - as long as these persons do not employ subcontractors).

Exceptions to the rule

The threshold of 50 persons employed as of 1 January or 1 July of a given year will not apply to entities performing activities in the following areas: financial services, products and markets, and prevention of money laundering and terrorist financing, transport safety and environmental protection (the exact list of these entities is provided in the annex to the directive). These entities will be required to establish an appropriate internal notification procedure regardless of the number of employees.

Another exception is the organisational units of a municipality or county (e.g., a municipal or county office) with a population of less than 10,000. Such entities will be exempt from creating an internal notification procedure regardless of their number of employees.

It is worth remembering that entities that are not required to put in place an appropriate procedure will still be able to establish this voluntarily. This means that, generally, employers with a minimum of 50 people will have to introduce internal notifications, while those with fewer employees will be able to do so.

Dr Marcin Wujczyk, Bartosz Maciejewski