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, considered the first more comprehensive regulation of whistleblowing in Slovakia. The Act came into force on 1 January 2015.
The new legal regulation introduces, for some employers, obligations to be fulfilled in a relatively short, half-year period; a failure to fulfil them is penalized by a fine of up to €20,000.
This overview provides basic information on the objectives of the new Act in protecting whistleblowers and on new obligations imposed on employers.
Objectives of the New Act
The new Act regulates, in particular, the conditions of providing protection to natural persons from unauthorized retaliation in the labor 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 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. This activity also covers, under the new Act, criminal offences that are punishable, under the Penal Act, with a maximum term of imprisonment exceeding three years, and administrative offences punishable by a maximum fine of at least €50,000.
The Act provides protection to whistleblowers, i.e., persons reporting the facts about which they have learned in relation to the performance of their employment, occupation, position or function and which can significantly contribute or have significantly contributed to clarification of serious anti-social activity or to identifying or convicting the offender. In cases where the same employer also employs a person who is significantly close to the person making the report, such person is similarly considered a whistleblower.
If the person making the report applies for protection, and the prosecutor, court or administrative body that conducts the proceedings finds that the person meets the above-mentioned definition of “whistleblower”, the prosecutor, court or administrative body will notify the person’s employer and the labor inspectorate that the person has been provided protection as a “whistleblower”.
The labor inspectorate is a state body falling under the authority of the Ministry of Labor, Social Affairs and Family of the Slovak Republic.
Protection Provided to Whistleblowers
The provided protection consists in the fact that the whistleblower’s employer can perfrom a legal act or issue a decision in the labor-law relationship with respect to the protected whistleblower only with prior consent of the labor inspectorate. The employer must apply to the labor inspectorate for such consent.
In simple matters, the labor inspectorate will decide on the application for granting consent immediately. In other matters, the labor inspectorate will decide within 30 days from the delivery of the application for grating consent.
The labor inspectorate will grant consent to the proposed labor law act of the employer with respect to the protected whistleblower only if the employer shows that the proposed labor law act has no causal relation to the report made by the whistleblower, otherwise the application for granting consent will be rejected. The decision of the labor inspectorate may be appealed by both the whistleblower and the employer.
Under law, consent of the labor inspectorate is not required if a labor law act is used for recognition of a claim or if a labor law act relates to termination of a labor law relationship resulting from a legal fact independent from the employer’s assessment. Consent of the labor inspectorate is also not required if a legal act of the employer has been made or if a decision has been issued with the employee’s consent. Any other legal act with respect to the protected whistleblower, to which the labor inspectorate did not grant consent, is invalid.
New Obligations of Employers – The Internal System of Handling the Reports
For employers with at least 50 employees and employers that are public authorities, the Act introduces new obligations with respect to whistleblowing. Failure to fulfill these obligations is subject to a fine of up to €20,000.
It relates primarily to the following obligations:
- To set up a separate organizational unit or designate a person to perform the employer’s duties under the new Act. Such responsible person can be, based on agreement with the employer, a person who is not an employee. The responsible person is subordinate to the employer’s statutory body and if such person is not an employee, such person is only obliged to follow instructions of the employer’s statutory body.
- To publish and make available, in a method that is standard and usually accessible to all employees, the designation of the above- mentioned responsible person and methods of reporting, with at least one reporting method being 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 its investigation within 10 days from the completion of the investigation of the report.
- To issue the employer’s 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 the term of three years from the delivery of the report, to keep records of the reports to the following extent: the date of delivery of the report, name, surname and address of residence of the person making the report (in the case of an anonymous report, just stating that it is an anonymous report), the subject of the report, result of investigation of the report and date of completion of investigation of the report.
Employers with at least 50 employees and employers that are public authorities are obliged to fulfill the above-mentioned obligations within six months from the date when the Act comes into force. Therefore, it is necessary to bear in mind that they must, for example, designate the responsible person and prepare internal policies for handling the reports not later than 30 June 2015. Otherwise, as already stated, there exists a risk of imposition of a fine up to €20,000. The fulfillment of obligations under the new Act is supervised by the labor inspectorate.