On 16 October 2014, the National Council of the Slovak Republic adopted Act No. 307/2014 Coll. on Certain Measures Related to Reporting of Anti-social Activities and on Amendment and Supplements to Certain Acts ("Act"), which is considered as the first comprehensive regulation of whistleblowing in Slovakia. The Act came into force on 1 January 2015.
The new legal regulation introduced, for some employers, obligations that had to be fulfilled in a relatively short, half-year period which ended on 30 June 2015; failure to comply could result in firms being penalized by fines of up to EUR 20,000.
New Obligations of Employers – The Internal System of Handling Whistleblower Reports
For employers with at least 50 employees or public authorities, the Act introduced new obligations with respect to whistleblowing. It relates primarily to the following obligations:
- With respect to providing protection for whistleblowing employees, as defined under the new Act, employers must set up a separate organizational unit or designate a person to perform the employer’s duties in this regard. In the latter case, the designated responsible person need not be, based on agreement with the employer, an employee. Notwithstanding whether the employer chooses such a responsible person from within the company or outside of it, that person is subordinate to the employer’s statutory body, and if not an employee, is obliged to only follow instructions of the employer’s statutory body.
- Employers must publish and make available, in a method that is standard and usually accessible to all employees, the designation and identity of the abovementioned responsible person and the methods for making anonymous or named reports on serious or other anti-social activity about which employees learned in relation to the performance of their employment, occupation, position or function. At least one reporting method has to be available 24 hours a day.
- To accept and investigate each report within 90 days (it can be extended by another 30 days) from its receipt, and notify the person making the report of the result of the investigation within 10 days from the completion of the investigation.
- To issue internal policies laying down the details on: reporting, investigation of reports and authorizations of the responsible person in the investigation of the reports, maintaining confidentiality of the identity of the person making the report, keeping records of the reports, notification of the person making the report of the result of investigation, and on processing the personal data stated in the report.
- For a period of three years from the receipt of the report, to keep records of the reports to the following extent: the date of its delivery, the name, surname and address of the person making the report (or, in the case of an anonymous report, stating that it is an anonymous report), the subject matter of the report, the result of the investigation and date of completion of the investigation.
The General Objective of the Act
The Act regulates, in particular, the conditions for providing protection to natural persons from unauthorized retaliation in a labour law relationship as a result of the reporting of criminality or other anti-social activity. It also regulates the rights and obligations of natural persons and legal entities when blowing the whistle.
“Serious anti-social activity” is defined by the Act as criminal offences of damaging the financial interests of the European Communities, criminal offences of machinations (i.e., deceitful practices) in public procurement and public auction, criminal offences committed by public officials and criminal offences of corruption. Also covered under the new Act are criminal offences punishable by a maximum term of imprisonment exceeding three years, and administrative offences punishable by a fine of at least EUR 50,000.
The Act provides protection to whistleblowers, i.e., persons reporting facts which they learned in relation to the performance of their employment, occupation, position or function, and which can significantly contribute, or have significantly contributed, to revelation of serious anti-social activity, or to identifying or convicting an offender. In cases where the whistleblower’s employer also employs a person who is significantly close to the whistleblower, such person is similarly subject to protection against workplace retaliation. A significantly close person is a relative in a direct line of descent, sibling or spouse. Other persons in a familial or similar relation are deemed to be significantly close to each other if a harm suffered by one is reasonably felt by the other as his/her own.
If the person making the report applies for protection, and the prosecutor, court or administrative body conducting the proceedings finds that the person meets the abovementioned definition of “whistleblower”, the prosecutor, court or administrative body will notify the whistleblower’s employer and the Labour Inspectorate that the whistleblower has been provided protection as such.
The Labour Inspectorate is a state body falling under the authority of the Ministry of Labour, Social Affairs and Family of the Slovak Republic.
Protection Provided by the Act
The new Act protects whistleblowers by requiring the prior consent of the Labour Inspectorate before the whistleblower’s employer can perform any legal act or issue any decision affecting the labour law relationship with the protected whistleblower. The employer must apply to the Labour Inspectorate for such consent.
In simple matters, the Labour Inspectorate will immediately rule on whether to grant consent immediately. In other matters, the Labour Inspectorate will issue a decision within 30 days from the delivery of the application seeking consent.
The Labour Inspectorate will grant consent only if the employer shows that the proposed act has no causal relation to the report made by the whistleblower. Failure to demonstrate this will result in a rejection of the application. The decision of the Labour Inspectorate may be appealed by both the whistleblower and the employer.
Under law, consent of the Labour Inspectorate is not required if a labour law act is used for recognition of a claim (e.g. salary rise), or if a labour law act relates to termination of a labour law relationship resulting from a legal fact independent from the employer’s assessment, such as termination of the employment relationship by the employer due to the fact that the employee ceased to meet the preconditions set by legal regulations for the performance of his/her work. Consent of the Labour Inspectorate is also not required if a legal act of the employer has been made, or a decision issued, with the employee’s consent. Any other legal act with respect to the protected whistleblower, to which the Labour Inspectorate did not grant consent, is invalid.
Failure to fulfill the abovementioned obligations, with respect to the internal system of handling the reports, might result, as previously mentioned, in the imposition of a fine up to EUR 20,000. The fulfillment of obligations under the new Act is verified by the Labour Inspectorate.