What can a whistleblower report?

On 24 June 2024, the Whistleblowers Protection Act was published in the Journal of Laws. After a delay of several years, Poland - as the last European Union country - implemented the Directive of the European Parliament and of the Council (EU) on the protection of whistleblowers into its legal order. Thus, the period of vacatio legis, which is three months for most provisions, commenced. They will enter into force at the end of September 2024.

The Act allows whistleblowers to make reports or public disclosures if they identify violations of the branches of law set out in the Act. It is therefore worth answering the seemingly trivial question of what matters a report can address.

Which violations can whistleblowers report?

The law defines infringement as an act or omission that is unlawful or intended to circumvent the law as regards:

1. corruption,
2. public procurement,
3. services, products and financial markets,
4. prevention of money laundering and terrorist financing,
5. product safety and compliance,
6. transport security,
7. environmental protection,
8. radiological protection and nuclear safety,
9. food and feed safety,
10. health and welfare of animals,
11. public health,
12. consumer protection,
13. protection of privacy and personal data,
14. network and IT system security,
15. financial interests of the State Treasury of the Republic of Poland, a local government and of the European Union,
16. the internal market of the European Union, including public law competition and state aid rules and corporate taxation,
17. constitutional freedoms and rights of a human and citizen - in relations of the individual with public authority bodies and not related to the areas indicated in points 1–16.

The above list is a mandatory minimum. Each legal entity will be obligated, within the framework of its internal regulations, to accept reports of the above violations and, consequently, to take appropriate follow-up action with due diligence.

This list is important for another reason. The Act introduces protection for whistleblowers against retaliation, in short, against actions constituting reprisals for making a report. At a minimum, this protection extends to reports relating to violations of areas of law and the matters identified above.

Can internal notifications relating to violations outside the Act's subject list be considered?

Legal entities may, in the framework of the internal notification procedure, accept and process notifications concerning internal regulations or ethical standards that have been established on and which comply with generally applicable law.

There is therefore no obstacle to enabling potential whistleblowers to report violations of, for example, labour law (bullying, harassment, etc.) and to report them to the police).

For these additional and optional issues, a whistleblower will not be able to file an external report or make a public disclosure. The report will only be dealt with at the level of the subject organisation. However, whistleblowers will have adequate protection against retaliation and thus civil and criminal instruments to protect their interests.

How to prepare for the Whistleblower Protection Act coming into force?

Private entities obligated to establish an internal whistleblowing procedure should review their existing procedures relating, for example, to anti-bullying and consider whether to include such violations in the whistleblowing procedure or leave them to be addressed separately.

Both solutions have advantages and disadvantages. By allowing whistleblowers to report, for example, bullying under the internal reporting procedure, the number of procedures is reduced. Potential whistleblowers will therefore find it easier to file a report because they will not be wondering which procedure will apply. By doing so, the employer demonstrates that it has a universal whistleblowing procedure guaranteeing that each case will be dealt with properly and with full confidentiality of whistleblowers.

On the other hand, however, the inclusion of additional violations in the internal reporting procedure implies the imposition of obligations on the employer under the Whistleblower Protection Act, if only in terms of confirming receipt of the report and providing feedback by the deadlines set out in the Act. In addition, as mentioned above, the inclusion of other violations in the internal procedure will have the effect of granting a whistleblower protection against retaliation and the acquisition of a civil law claim by the whistleblower for damage or harm caused by such action. In this respect, the legislation provides for a so-called reversal of the burden of proof. The private entity will be obligated to demonstrate in the course of legal proceedings that a given action did not constitute a retaliatory action within the meaning of the Act. Furthermore, it should not be forgotten that the Act provides for criminal liability for retaliatory actions against a whistleblower.

It is therefore worth making an informed decision with consideration of all pros and cons.

Przemysław Zając