Does Every Company Have to Protect Whistleblowers?
On 24 June 2024 the Whistleblower Protection Act[1] was published, providing for a 3-month period for implementing changes in companies. Entrepreneurs will have to prepare the appropriate procedures by 25 September 2024, which may be made more difficult by the approaching holiday season.
Who Is a Whistleblower?
A whistleblower (sygnalista) is a natural person who reports or publicly discloses information on a breach of the law obtained in a work-related context. Importantly, this need not only be a person employed under an employment contract. Protection will also cover, for example, temporary workers, persons performing work under a civil law contract, holders of a commercial power of attorney (prokura), shareholders of joint-stock companies and of other companies, members of company bodies, interns, volunteers and trainees. It should also be remembered that protection applies not only to current employees, but also to former employees and to persons with whom only recruitment interviews have been held.
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Breaches a Whistleblower May Report
A whistleblower will be able to report breaches committed by way of an unlawful act or omission, or intended to circumvent the law, concerning, for example, corruption, public procurement, product safety, environmental protection, personal data protection, and the security of networks and ICT systems.
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Whistleblower Protection Policy
Entrepreneurs will have to prepare documents governing the internal procedure for reporting information on breaches of the law and the follow-up actions taken. This is because no retaliatory action, attempt at retaliation or threat of retaliation may be taken against a whistleblower.
Examples of retaliatory action include:
- refusal to establish an employment relationship,
- termination of a contract,
- failure to conclude a further fixed-term contract,
- withholding promotion (or passing over for promotion),
- transfer to a lower position,
- assigning the whistleblower's existing duties to another employee,
- an unfavourable change in the place of work or working hours,
- a negative assessment of work performance or a negative work reference,
- workplace bullying (mobbing),
- discrimination,
- unfair treatment,
- passing over when selecting participants for vocational training,
- action intended to make it difficult to find work in the sector in the future.
What Remedies Will Be Available to a Whistleblower?
A whistleblower subjected to retaliatory action may claim damages and compensation for non-pecuniary harm.
The Act sets only a minimum amount of damages, equal to the average monthly salary in the national economy in the previous year.
The average monthly salary in the national economy in 2020 was PLN 6,246.13.[2]
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Do All Entrepreneurs Have to Protect Whistleblowers?
The obligation to implement an internal reporting procedure applies to an entrepreneur that, as at 1 January or 1 July of a given year, employs at least 50 persons. This number includes employees counted on a full-time equivalent basis, and persons performing paid work on a basis other than an employment relationship, provided they do not engage other persons for that type of work, regardless of the basis of engagement. Entrepreneurs employing fewer than 50 persons may implement such a procedure voluntarily.
What Sanctions Apply for Failing to Protect Whistleblowers?
The Act provides for criminal liability for the following conduct:
- preventing or materially hindering a report by a whistleblower,
- taking retaliatory action against a whistleblower, a person assisting in making a report or a person connected with the whistleblower,
- disclosing the identity of a whistleblower, a person assisting in making a report or a person connected with the whistleblower,
- failure by the person responsible to establish an internal reporting procedure, or establishing one in material breach of the Act.
Do you need help implementing whistleblower protection procedures or training for employees? Our Law Firm specialises in legal services for entrepreneurs. Please contact us.
[1] Act of 14 June 2024 on the Protection of Whistleblowers (Journal of Laws, item 928).
[2] https://stat.gov.pl/sygnalne/komunikaty-i-obwieszczenia/lista-komunikatow-i-obwieszczen/obwieszczenie-w-sprawie-przecietnego-wynagrodzenia-miesiecznego-w-gospodarce-narodowej-w-2023-r-i-w-drugim-polroczu-2023-r-,276,11.html
