Whistleblower series: Poland

CEOS and managers seeking guidance on formulating procedures and policies for conducting internal investigations in Poland should not look for direct guidance from the state.

Polish law does not directly regulate internal investigations. In addition, there are no laws regulating grievance procedures when employees step forward with allegations of misconduct and no regulations that directly determine how employees should be interviewed and questioned over these allegations.

But companies facing this issue are not working in a complete legal vacuum. Laws governing data protection (in line with the EU's General Data Protection Regulation or GDPR), harassment, equal treatment and confidentiality offer managers some guidance on how to best conduct in-house inquiries in Poland.

Also, as more and more companies in Poland turn to internal investigations as a means of maintaining order and reducing their risks of legal liability, the Polish business community has developed a series of best practices that are in line with the nation's exiting laws and corporate culture.

In light of all of this, what are the recommended procedures for conducting internal investigations in Poland? For starters, we recommend that internal investigations be divided into three areas: a preparatory stage, the investigation itself and a follow-up which involves disciplinary action if an employee was found guilty.

Preparation

Before an investigation is launched, a company must decide on the official who will oversee the process.

The best candidates are HR managers, compliance officers, or external experts such as a law firm with experience in these matters. Once appointed, this official must receive signed written authorisation to conduct the investigation from responsible company officials (i.e. management board members) and – in line with data protection laws – receive special authorisation to process the data of any employees.

Lastly, before launching the inquiry, the investigation commissioner should be fully acquainted with whatever procedures and policies regulating internal investigations are in place at the company so that evidence is collected and interviews conducted in line with these bylaws.

In terms of practices to avoid, we recommend that investigators do not release specifics about the investigation while evidence and testimony are being collected. Also, during the stage when witnesses are being questioned, we recommend not letting witnesses communicate with each other between their interviews so that they are not able to influence one another, reveal the nature of investigation, get their stories straight, etc.

Interviews

When questioning witnesses, we recommend that investigators inform all involved of the purpose and scope of the investigation without, of course, revealing details on any findings or the identity of the whistleblower who revealed the breach.

Before being interviewed, witnesses should agree to testify by their own free will, and should sign consent forms attesting to this. This will prevent witnesses from being able to withdraw their testimony later.

In addition, all witnesses must be told that the investigation is highly confidential and should be asked to sign non-disclosure agreements relating to it.

When interviewing subjects, witnesses should not be bullied, restrained (e.g. prevented from leaving the interview room) or placed under undue pressure. Questions should not reveal details of the original allegation or compromise the personal data of any employee.

When conducting questioning, the investigation is under no legal obligation to allow witnesses to have friends or supporters in the interview room with them. This can be allowed if internal rules provide otherwise.

As for the recording method for interviews, we recommend that the minutes be taken. Recording interviews digitally is not advised, and investigators should take care to ensure that interviewees are not themselves making clandestine recordings of the proceedings.

If a company insists on making an audio or audio-visual recording, all data protection and GDPR regulations must be followed. In line with this, all witnesses should agree in writing that they consent to be recorded.

After the interviews are completed, investigators should compile a report that summarises the findings. This report both collates any evidence and proves that an investigation was actually conducted. Also, once this stage of the investigation is over, the whistleblower or complainant should be informed.

Neither the whistleblower nor the interview subjects are entitled to see this summary. Employers are under no obligation to share the investigation's findings.

Disciplinary actions

If an investigation proves that an employee is guilty of misconduct, a company will need to consider meting out disciplinary measures.

The first form of discipline is the admonition or reprimand, which will be communicated by a written warning letter, a copy of which is kept in the employee's file.

In terms deadlines, this penalty must be assessed no later than two weeks after the company learns of the misconduct, but not later than three months after the misconduct.

A penalty is handed out for fairly basic infractions, such as ignoring or disobeying essential work orders or being under the influence of alcohol or drugs on the job.

The company must invite the employee to a meeting during which he will be given the opportunity to discuss the case. During the meeting, the employee must have a chance to submit his explanations in relation to the misconduct, circumstances and motives. After the hearing, the company must reflect on the situation. It can either refrain from imposing a penalty or impose a sanction. The company must issue the warning letter in writing.

The employee can also challenge the outcome of the investigation, but he must do so in writing within seven days of receiving the verdict. This letter must be addressed to the company, which – when considering this appeal – must consult with the company's trade union (if a union is present at the company).

If the company decides not to amend the decision, the employee has a right to take the matter to labour court, but the employee must do this within 14 days of receiving the company's final decision.

A penalty is not the only form of punishment. Employees can be terminated with notice for more serious infractions, including breach of duties. In this case, a written notice of termination is presented to the employee and his labour union, if any, should be consulted. An employee can appeal this type of termination to the courts, citing generally unfair dismissal or a similar defense, but such a filing must be made within 21 days of receiving the notice.

If the courts rule in favour of the employee's motion, they can demand that the company pay compensation to the employee equal to up to three months’ salary. Alternatively, the employee can be reinstated to his previous job position (together with a salary) for up to two months.

Also, companies cannot issue termination with notice to employees while they are on holidays, maternity leave, parental leave or absent due to illness. Employees approaching retirement age and trade union representatives are also afforded special protection from termination.

For highly serious misconduct, companies can dismiss employees without notice. Such termination is with immediate affect, and is reserved for serious breaches when an employee's actions have adversely affected the company's interests. In dismissals without notice, companies must serve these decisions to employees in writing no later than one month after learning of the misconduct.

Also, in these situations, a company does not need to hear an employee's version of events, but should consult with the employee's trade union (if any).

Following a dismissal without notice, an employee has 21 days to challenge this judgment in labour court. Finally, those protections mentioned above that insulate employees from termination with notice do not apply to dismissals.

In summary, although Polish law does not directly regulate internal investigations, Polish companies have options at their disposal to respond to allegations of misconduct and protect both their interests and the wellbeing of their employees.