In the Czech Republic, discussions have been going on for several years between professionals and lawmakers on the implementation of efficient tools for the protection of those who resolve to report unlawful or antisocial activities of their employers or colleagues and who are threatened by adverse consequences from these persons. In many instances these persons are employees who have access to sensitive information but who are often afraid to take any action because of the possible negative consequences. Currently there is no specific legal regulation dealing with this problem and guaranteeing protection. However, the situation should change soon.
Czech approach to whistleblowing
Internationally, the procedure for detecting illegal practices and malpractices is called whistleblowing and in some countries (including those where English is not the official language) this expression is used as the official term. In Czech law there is no uniform definition or interpretation for this term. In most cases it is translated as “protection of the notifier”. A person providing such information is then regarded as the notifier.
However, Czech public (often professionals) continues to perceive whistleblowing sceptically, mainly due to experiences from the previous century, when reporting was a daily routine and when the past regime even required reporting from the people.
Current status of the legal system
The Czech legal system does not possess any specialised legal regulation covering the whistleblowing issue which would offer an efficient protection to all notifiers. Although a draft law which could remedy the situation was previously submitted, it has never been passed by the Czech Parliament. Thus notifiers must rely only on protection offered by the current applicable legislation.
The first of these regulation from which a certain level of prevention against undesirable effects for the notifier - employee may be deduced is the Czech Labour Code. For instance the Czech Labour Code prescribes a ban on unequal treatment of employees. If the notification concerns facts relating to employment, the notifier should not be treated in a less favourable manner than other employees. Another guarantee is the fact that a termination notice for an employment contract can be given only for listed reasons which do not include a notification.
The other regulation introducing a certain level of protection is the Czech Criminal Code. If the notification is so serious that investigative, prosecuting and adjudicating bodies start investigating it, it is possible to conceal the identity of the witness. However, the notifier is not entitled to this type of protection and it is always dependent on the discretion of the investigative, prosecuting and adjudicating bodies and on the fulfilment of strict conditions.
Changes to notifier’s protection in preparation
Since January this year a new Civil Service Act has been in effect which explicitly sets out the duty to issue a decree which will secure protection for state servants in whistleblowing cases. Although the act does not set out an exact date when this decree should be issued, its first draft already exists. Unfortunately, we must conclude that we do not find this draft law sufficient.
In our view the problem is not the scope of its applicability (the act only applies to state administration employees) but rather the level of protection it brings. The draft government’s decree only gives general information which should guarantee that the notifier will be protected against unfavourable consequences but does regulate any specific consequences.
According to the decree protection should be provided to a state employee who notifies a suspected criminal offence committed by a managing employee, state employee, other employee or person under a service contract in performing their state service, work or a public office or in connection with it. According to the explanatory notes the unlawful acting consists not only in the breach of legal regulations but also service regulations, internal policies or instructions for performance service duties. The notification must be made in good faith that the notified information is true.
In connection with notification, it is prohibited to sanction, disadvantage or expose to coercion the notifier and the same level of protection to a person close to the notifier if such a person has a basic employment or other similar relationship with the state or a service office. According to the government, the possibility to impose a disciplinary measure on a state employee is a sufficient sanction for an “ordinary employee” and a guarantee of the notifier’s protection (for a disciplinary breach a written admonition, salary decrease by up to 15% for up to three calendar months, recall from a managing employee’s position or dismissal from the service post may be imposed. However, gravity of the disciplinary breach must be taken into account in determining gravity of the disciplinary measure). However, if this ban is breached by an “ordinary” employee, only the general legal regulations mentioned in the initial part of this article will apply.
Another guarantee of the notifier’s protection is the possibility of concealing the notifier’s identity or making an anonymous request. If the notifier requests that their identity be concealed, steps must not be disclosed. However, the notifier must ask for concealing their identity and rely that they will not be discovered afterwards. Because the Civil Service Act prescribes a confidentiality duty for civil servants it is not assumed that the investigator who must be appointed from among civil servants breached their duty.
The rest of the decree only lays down a procedure for securing the notification, deals with document management and keeping, with time-limits for investigating and with the informing on the course and results of the investigation.
Unfortunately, we must conclude that concerning the current draft decree all these modes of protection have been applied and no other are prescribed. We could only speculate why in drafting its decree the government did not get more inspired by foreign legislation where the protection principles have applied for several years already. The decree could establish a specific supervisory body which would be responsible for assessing the reasonability of steps taken against a notifier or could at least set an incentive reward for notifiers who hesitate whether they should provide information. Unfortunately, the decree does not include any of the above proposals.
We can only hope that the wording of the decree, which has not been finalised and approved yet will be made more precise and that in the future a special law will be adopted which will also provide protection to notifiers in the private sphere.