Polish employers are increasingly introducing whistleblowing programmes which allow employees to report irregularities in the workplace. Companies encourage workers to bring to their attention any legal, organisational and ethical shortcomings. It is usually done anonymously, as it often relates to reporting another employee’s inappropriate conduct.
The introduction of a whistleblowing policy involves an analysis that mainly focuses on data protection and employment law. The fundamental question from the point of view of labour law is whether employee representatives should be consulted about the content of such a programme.
No permanent representation of employees
If there is no permanent representation of employees within a company, the employer may introduce such a policy unilaterally. The policy may take the form of a stand-alone policy or an extension of its labour by-laws (“regulamin pracy”), i.e. a document that defines work organisation and order. The employer is not obliged to organise elections in which employees would select a representative to consult the employer on the content of the policy.
However, if there is employee representation within the company, then whether the employer has a duty to consult the whistleblowing policy with those representatives depends on the type of representation and the exact contents of the policy.
A works council must be informed of the intention to introduce a material change to the work organisation. There are arguments to conclude that an employer is not obliged to inform a works council of the intention to introduce a whistleblowing policy. A whistleblowing policy seems not to constitute a material change to the work order because:
- it is hard to say that we are dealing with an organisational change. Although such a programme would be a culture shift, in principle, the work order does not change;
- even if it is an organisational change, it is hard to qualify it as a material change.
Of course, an unambiguous conclusion is difficult, especially as the content of such rules is not specified by law, and therefore may be different at different employers.
If trade unions operate within a company, the obligation to agree on the contents of a whistleblowing policy depends on its precise wording. Even though the matter is still ambiguous, it seems that two scenarios are possible:
- the programme directly regulates employees’ rights and obligations. For example, it provides for sanctions for failing to comply with the whistleblowing policy. In such a case it can be classified as a part of the labour by-laws which must be consulted with trade unions; or
- the programme only indicates whom the employees should report irregularities to and how they should do it. Although the programme provides for an organisational framework, it does not, to any significant extent, modify the work order and organisation. In this case, the whistleblowing policy is not a part of the labour by-laws. The content of the whistleblowing policy remains the employer’s responsibility and it is not necessary to consult the trade unions about it.