A draft of the long-awaited act on protection of persons reporting violations of law, commonly known as the Act on protection of whistleblowers has appeared on the website of the Government Legislation Center.

The objective of the Act is to implement Directive 2019/1937 of the European Parliament and the Council of 23 October 2019 on the protection of persons who report breaches of Union law, commonly known as the Whistleblower Protection Directive. It aims to introduce into the Polish legal order provisions protecting whistleblowers, i.e. persons who, acting in good faith, report irregularities or violations of law to their employer.

We wrote about the most important provisions of the Whistleblower Protection Directive here.

Employers should take particular note of the following:

  • Internal reporting obligations will apply to employers with 50+ employees;
  • The 50-employee threshold will not apply to, among others, employers engaged in activities in the areas of: (i) financial services, products and markets, (ii) prevention of money laundering and terrorist financing, (iii) transportation safety and (iv) environmental protection;
  • The scope of the Act will cover reporting of violations of law regardless of whether reported by employees or other persons who become aware of the violation of law in the context of work, irrespective of the legal basis and form of work provision (this also applies to entrepreneurs cooperating under B2B contracts) and of whether the legal relationship is yet to be established (candidates in the recruitment process) or has already ceased (former employees and contractors);
  • The Act will regulate three modes of whistleblower action (notification or disclosure) in reaction to information about a breach: (i) reporting to the employer (internal reporting), (ii) reporting to a public authority (also to a designated central authority – the Ombudsman), and (iii) public disclosure;
  • Whistleblower protection will apply to the violations of law provided for by Directive 2019/1937 (as listed in the Annex to Directive 2019/1937) and to all violations of national law in areas corresponding to those listed in the Directive;
  • In the case of internal reporting, the employer will have the right to expand the scope of legal violations that may be subject to internal reporting, in particular those relating to internal regulations or ethical standards;
  • The Act will apply to the anonymous reporting of violations only in cases where the possibility to report violations anonymously is provided for in the internal reporting regulations or in the procedure for reporting violations of law to a public body;
  • The Act will strengthen the legal position of the whistleblower by reversing the burden of proof, according to a model similar to the protection against unequal treatment in employment. This means that if a whistleblower claims to have suffered harm as a result of reporting or making a public disclosure, the harm will be presumed to have been caused in retaliation for the reporting or public disclosure, and the person who took the action causing the harm will be obliged to prove that s/he took the action for duly justified reasons;
  • A unilateral legal action aiming at termination of a legal relationship under which work is provided (other than an employment relationship) because of the notification or disclosure of an infringement will be ineffective as a matter of law. Similarly, the termination or termination without notice of a contract in the course of business to which the notifier is a party, particularly relating to the sale or supply of goods or the provision of services, because of the notification of an infringement, will be ineffective;
  • The Act introduces the nullity by law of so-called "gagging clauses", i.e., clauses restricting the possibility of reporting or disclosing information about a breach, which could be included in employment contracts or other acts on the basis of which the employment relationship is created or formed;
  • The employer is required to issue internal reporting regulations. A procedure similar to the one currently in force for the establishment of work regulations will apply here, which is intended to ensure consistency with the provisions of the Labor Code. The internal reporting regulations will be subject to consultation with trade unions or employee representatives selected in accordance with the procedure adopted by the employer, and will come into force two weeks after they are announced. Every employee is required to familiarize him/herself with them before commencing employment;
  • Internal reporting regulations may include other persons from whom notifications will be accepted, such as former employees, persons working for the employer on a non-employment basis, shareholders, partners, members of the management or supervisory body, volunteers, interns and persons working under the supervision and direction of a contractor, subcontractor or supplier. Such persons will be required to familiarize themselves with the regulations before starting work for the employer;
  • The internal notification regulations will specify the maximum time limit for providing feedback to the notifier. This deadline cannot exceed three months from the date of acknowledgement of the notification;
  • Private sector employers with 50-249 employees may contractually cooperate in receiving, verifying, and following up on reports. The internal notification channel can be outsourced to third parties;
  • Employers will be required to maintain an internal notification register, and the data in the internal notification register will be retained for five years from the date of acceptance of the notification;
  • A criminal sanction (fine, penalty of restriction of liberty or imprisonment for up to 3 years) will be introduced for those who fail to establish an internal procedure for reporting violations of the law and taking follow-up action, or if the procedure they establish violates the Act;
  • The Act comes into force 14 days after its promulgation;
  • Employers with 250+ employees will be required to introduce internal reporting regulations by the Act's effective date, which may be later this year. The date is unknown, but the directive requires implementation into national law by December 17, 2021);
  • Private sector employers with 50-249 employees will be required to establish internal reporting regulations by December 17, 2023;
  • The draft is currently in the process of inter-ministerial review and consultation. As part of the legislative process, comments may be submitted by business organizations, among others, within 30 days of the date of publication, i.e., by November 18, 2021.