It has already been four months since the deadline to implement the EU Whistleblowing Directive (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 Union law). As of 17 December 2021 almost none of the EU Member States had adopted local legislation implementing the EU directive; Poland being one of them.On 27 January 2022 the European Commission sent official notification to Poland because of the lack of transposition of the Directive.

On 12 April 2022, a second draft implementing bill was published on the Government Legislation Centre (RCL) website. During public consultation, the initial draft implementing bill received significant negative feedback and, therefore, the Polish government decided to replace it by a new draft bill. The new draft bill has material changes in comparison to the preceding draft bill. Unfortunately, after the first reading of the bill it became obvious that some of the (justified) comments about the first bill have not been properly addressed.

Below we present the key points of the new draft implementing bill:

On 12 April 2022, a second draft implementing bill was published on the Government Legislation Centre (RCL) website. During public consultation, the initial draft implementing bill received significant negative feedback and, therefore, the Polish government decided to replace it by a new draft bill. The new draft bill has material changes in comparison to the preceding draft bill. Unfortunately, after the first reading of the bill it became obvious that some of the (justified) comments about the first bill have not been properly addressed.

Below we present the key points of the new draft implementing bill:

1. Obligation to implement an internal whistleblowing procedure. Internal procedures for reporting wrongdoings will need to be adopted by any entity (legal person) for whom at least 50 persons work. This threshold does not apply to special categories of entities (e.g. financial sector institutions) which must adopt an internal whistleblowing procedure irrespective of the number of workers. Already at this point the first doubts arise because it is not clear who is a “person performing work for an entity”. The justification of the draft bill suggests that by that term the legislator meant employees (only persons employed under employment contracts). However, the legislator forgot that EU laws and the EU Whistleblowing Directive specifically broadly define the term “employee”; to be a person who, for a specified period of time, performs services for and under the direction of another person in return for remuneration. Consequently, pursuant to the EU Whistleblowing Directive, that definition should include not only employees within the meaning of the Polish Labour Code, but could also include non-employee contractors which, however, has not been properly or unambiguously reflected in the draft bill. Further, it is not clear who – a user-company or a work agency – should calculate temporary (agency) workers in the above worker threshold. The literal wording implies that temporary workers should be calculated twice. Last but not least, the question arises on which date is the above threshold to be verified which could cause significant problems for entities having highly variable employment levels during a year (e.g. those using a significant number of temporary or other seasonal workers). 
2. Deadline for implementation. Many comments on the initial draft bill addressed the (short 14-day) deadline for adopting internal whistleblowing procedures. The current proposal is that companies having at least 250 workers, and those belonging to special categories, adopt internal whistleblowing procedures within one month from when the new act enters into force (in practice within three months from announcement in the official Journal of Laws). The deadline for implementation for entities having 50-249 workers remains unchanged and is 17 December 2023.  In practice the entities who are first in line to comply with the statutory duty will have less than 3 months for implementation because the internal procedure must be consulted with employee representatives and it cannot enter in force earlier than 2 weeks after it is announced to personnel. That means that in fact works on internal procedures in those entities should start soon after official announcement of the new act. The good news is that failure to comply with the duty is no longer subject to the penalty of imprisonment. Currently, if an entity fails to adopt an internal procedure or the adopted procedure does not meet minimum statutory requirements, the entity (or more specifically, its directors) can be fined. The amount of a fine has not been specified in the draft implementing bill and general penal law rules apply; therefore, theoretically a fine can be up to PLN 1,080,000 (approx. EUR 235,000).
3. Consulting employee representatives. An internal whistleblowing procedure must be consulted with trade unions or, if there are no trade unions at an entity, with employee representatives appointed for the purpose. Consultations should last for no less than seven days and not more than 14 days. An internal procedure enters in force two weeks after it is announced to personnel. The new draft implementing bill neither indicates whether an entity is bound by a consultation (the justification of the draft bill implies that the consultation is only to permit employee representative to present a (non-binding) opinion) nor whether employee representatives need to be consulted (again), if a whistleblowing procedure is already in place at an entity (e.g. at a company being obliged to adopt it under the Polish AML legislation that is in force) and only needs to be adjusted.
4. Possibility to use group (global) procedures. As in the initial draft implementing bill, the option to use group whistleblowing procedures will be available only to entities having 50-249 workers. There is little chance for this option to be extended to larger companies because the Polish draft bill strictly follows the provisions of the EU Whistleblowing Directive.
5. Wrongdoings subject to whistleblowing reporting. The scope of wrongdoings that will be subject to reporting under the draft implementing bill has not changed significantly in comparison to the initial draft bill and includes any infringements of (both Polish and EU) law (or actions taken to circumvent the law) in the areas specified in the EU Whistleblowing Directive. Companies would still have an option to voluntarily extend the scope of wrongdoings subject to whistleblowing reporting to infringements of internal regulations / policies and ethical standards and such reports will be subject to whistleblowing procedure regime (which includes reporting persons being protected against retaliation). Unlike the earlier draft bill, the new draft bill does not exclude reporting of any interpersonal matters or wrongdoing which infringe upon a reporting person’s individual rights or interests. This exception raised doubt because it was not clear whether, e.g., workplace bullying or discrimination could be subject to whistleblowing reporting. Under the current proposal, such wrongdoings can be reported as a form of infringement of internal policies and standards (provided that a company decides to also accept reports on this kind of wrongdoings).
6. Whistleblowers (persons entitled to report). The group of persons who can file an internal report and, therefore, be protected against retaliation is significantly wider than before. In the first draft bill the right was reserved only for employees (under employment contracts) (unless a company decided to permit other persons to report). Under the new draft bill, each person that learns about a wrongdoing in a work-related context can file a report. That includes employees, temporary workers, freelancers (independent contractors), non-employee civil-law contractors (workers), shareholders, members of corporate bodies, personnel at a company’s business partners, subcontractors and suppliers, interns / trainees and volunteers, irrespective whether any such person learnt about a wrongdoing in the course of recruitment / negotiations (candidates), in the course of cooperation, or after it was terminated.
7. No anonymous reporting. An important change is that the new draft bill excludes the option of reporting anonymously. That means that each reporting person will be obliged to disclose at least a full name and contact details (address) and an entity will be permitted to disregard anonymous reports, unless specific statutory provisions provide otherwise (e.g. Polish financial sector regulations and AML laws permit anonymous reporting); reporting persons then will not need to disclose identities and will benefit from the protection against retaliation in those specific regulations, not the new whistleblowing act (which may be problematic because statutory regulations already in force provide a different level of protection). Naturally, a company could still decide to accept anonymous reports (irrespective of the statutory obligation to do so), but then the whistleblowing regime will not apply and reporting persons will be protected against retaliation under general rules of the Polish labour or civil law (which do not provide for specific protection for whistleblowers).
8. Equal level of protection. The new provisions governing protection against retaliation are not perfect and require further works by the legislator. The most important amendments in comparison to the initial draft bill are that: The new draft bill provides equal protection against retaliation for all whistleblowers, irrespective whether they are employed under employment contracts or work or provide services under other, non-employee relationships; i.e. there will be one standard of protection and claims available to all reporting persons. A whistleblower who suffered retaliation because of reporting will be entitled to claim full compensation (damages) and request discontinuance of any legal proceedings initiated against the person (disciplinary, criminal or else). The Polish legislator waived the legal effect of any negative action against the whistleblower being held to be ineffective (e.g. termination of a contract applying to a whistleblower being ineffective), but kept the rule that if any negative action is taken against a whistleblower, it will be the company that will need to prove that that is not retaliatory action, i.e. that there are objective, properly justified reasons not relating to the report which are the reasons for such negative actions (reversed burden of proof). In practical terms it could result in the need to justify (in detail) any action that is detrimental to a whistleblower, even though the general statutory rules do not require that. As an example: currently, there is no obligation to justify end of cooperation with an employee after lapse of a probationary period or earlier termination of fixed-term employment contract or civil-law contract, but because such action could be considered to be retaliation, employers could need to have defence files / justification simply because a whistleblower could make a claim. All contractual provisions or internal policies that directly or indirectly restrict the right to report or provide for negative consequences for reporting in good faith will be considered to be invalid.
9. Incentive for internal reporting. The new draft bill does not provide for any far-reaching changes to the initially proposed minimum content of an internal whistleblowing policy. A new feature is an option to introduce incentives for persons to use internal reporting channels instead of the earlier possibility to list wrongdoings when a company encourages internal reporting before notifying a public authority or making a public announcement. Bearing in mind the poor opinion that society has about whistleblowers (commonly thought to be snitches) and good faith (motive) that most whistleblowers have when reporting, introducing incentives could do more harm than good. In particular, companies that decide to grant such incentives, especially, pecuniary ones, can expect a higher number of reports of poor quality (based on incomplete or unverified information). The only thing that would then discourage such reports is that the persons who deliberately report false information face criminal sanctions (which includes imprisonment) or claims for compensation.    

Katarzyna Magnuska