Whistleblower protection is a new topic of concern in the Czech Republic. Currently, there are no specific provisions. Although whistleblowers enjoy the safeguards afforded by general legislation (such as unfair dismissal rules stipulated in the Labour Code), these have not been particularly effective because they are too often bypassed by employers.
The Governmental Strategy for the Fight Against Corruption for the Years 2013 and 2014 calls for the implementation of specific legislation on whistleblowing. After several months of consultations involving public authorities, private organisations and experts (including Transparency International), a draft legislation was presented to the government earlier this month by the chairwoman of the Governmental Committee for Coordination of the Fight Against Corruption. The proposal will not be a stand-alone statute but will take the form of an amendment to the Antidiscrimination Act and related laws.
The whistleblower protection, which is intended to apply to employees of public and private organisations alike, will be achieved through the following measures:
- The introduction of a new ground of discrimination, i.e. discriminatory measures taken by an employer against a whistleblower (unfair dismissal, detrimental changes to duties or working conditions, etc.);
- The reversal of the burden of proof: when a whistleblower is subject to discriminatory measures and seeks to enforce his/her rights, the burden of proof will be shifted to the employer. In other words, the employee will not have to prove the existence of discrimination. Rather, the burden will be on the employer to establish the absence of discrimination.
Narrow scope of protection
The scope of the proposed amendments is very narrow. Whistleblowing is defined as the reporting of a crime committed by the employer or another employee to the relevant authorities. It does not cover administrative offences. Several Czech whistleblowers who have suffered discriminatory measures as a result have criticised the limited reach of the law, which they claim will offer very little protection to those who dare to report. The proponents of the new measures argue that a wider scope of protection could be open to abuse. For example, an employee anticipating dismissal could report a fabricated offence in order to enjoy whistleblower protection.
An earlier draft of the law had additional requirements for a conduct to be considered “whistleblowing” and thus enjoy protection, namely good faith on the part of the whistleblower and probable knowledge of the crime by his/her supervisors. Surprisingly, these conditions were not included in the latest draft. The absence of the first condition opens up possibilities for abuse of whistleblower protection. The absence of the second condition may encourage reporting to state authorities in instances where internal reporting, i.e. within the company, would have been more appropriate.
A step in the right direction
Despite its narrow scope and arguably limited impact, the proposed measures for whistleblower protection are a step in the right direction. Hopefully, some of the issues mentioned above will be addressed before the legislation is finally passed by the Czech Parliament. Besides providing for whistleblower protection, the legislation should encourage employers to develop and implement internal reporting policies.
The Governmental Strategy for the Fight Against Corruption for the Years 2013 and 2014 also calls for support and assistance to be provided free of charge to potential whistleblowers in the form of legal and psychological counselling. An analysis of such support and assistance is scheduled to be presented to the Government by 31 August 2013.