So far, in Slovakia there has not been in force any regulation specifically addressing whistleblowing situations in which employees report wrongdoings, such as the commission of a crime which they learnt about in connection with the performance of their employment, work or function. Certain partial aspects related to whistleblowing have been regulated by the country’s data protection, criminal and labour laws.
Yet, this situation will change as of 1 January 2015 when the new Act No. 307/2014 Coll. on Certain Aspects of Whistleblowing (the "Act") becomes effective. The Act not only contains rules focused on protecting employees who are "blowing the whistle", but also impacts existing and future whistleblowing systems. As an attractive incentive, the Act offers successful whistleblowers a "bounty" corresponding to the 50-fold of the minimum wage in Slovakia.
New obligations of employers with respect to internal whistleblowing systems
The Act obliges employers with at least 50 employees to either establish a separate organizational unit or to designate a person who will be responsible for handling reports on serious as well as other wrongdoings about which a whistleblower learns when performing his/her employment, work or function. The responsible person may even be an external contractor; however, the person must in any case follow only the instructions of the employer’s statutory body. The identity of the responsible person/unit and the methods of reporting must be made public and available to all employees, whilst the identity of the whistleblower must be treated confidentially. At least one method of reporting must be available 24/7. Anonymous reports cannot be excluded.
According to the Act, the employer is liable to accept and examine every report within 90 days after its receipt. In addition, records on how a whistleblowing report has been handled must be kept for at least 3 years.
Moreover, the employer's internal guidelines must provide a summary of the mechanisms and specific particularities for submitting whistleblowing reports.
Although some Slovak companies, especially those with an international background, have already adopted internal guidelines or systems on whistleblowing, employers should double-check and ensure that they comply with the abovementioned duties within a six-month grace period, i.e. by 30 June 2015. Otherwise, state budget might cash up to EUR 20,000.
Protection of an employee blowing the whistle
The Act encourages employees to speak out about wrongdoings by offering them certain protections. Should an employment-related legal act (such as the termination of employment) be performed towards the employee submitting report, the employee may petition the labour inspectorate (and subsequently, the court) to have the effectiveness of the legal act suspended. Such a suspension will be granted if there are reasonable grounds to believe that there is a link between the legal act and the employee's whistleblowing.
Moreover, further protection is granted when certain serious wrongdoings, such as
- crimes of corruption or machinations in the course of public procurement procedures,
- crimes for which criminal law provides a sanction of imprisonment with an upper limit exceeding three years, such as the misappropriation of at least EUR 2,660, or
- administrative offences punishable with fines of maximum limit at least EUR 50,000,
When blowing the whistle or during the respective criminal or administrative proceedings, the whistleblower may apply for protection with the prosecutor, the court or the administrative body in charge. If protection is granted, the employer cannot undertake certain employment-related legal acts towards the protected employee without the prior consent of the concerned employee or of the labour inspectorate. Non-compliance with this rule invalidates the legal act. During the 30-day time period for the labour inspectorate to approve of the legal act, the employer must provide evidence that the legal act is not related to the employee's whistleblowing.
The Act tries to deal with potential misuse of such protection. For instance, an employee may be "whistling in the dark" to postpone his/her dismissal. In such a case, it is the employer who must prove bad faith on the part of the employee when reporting. Bearing this burden of proof might be difficult, as the law counts with the assumption of good faith in cases of doubt. Alternatively, the Act takes the protective shield off the employee only after the criminal or administrative proceeding is stayed, or if the employee is lawfully convicted of false accusation or false statement in connection with his/her whistleblowing.
What will be next?
As of 1 January 2015, employers should take the Act into consideration especially when (re-)drafting their internal guidelines on whistleblowing and taking care of their compliance procedures.
The power of these new rules should not be underestimated, in particular in connection with terminations of employment, as the protection granted by the Act may increase the risk of litigation regarding wrongful termination. However, there is still a chance that the Act will not be utilized in practice, such as the case of corporate criminal liability, which is statutorily regulated in Slovakia, but in fact, has not been applied.