1. General information.
On 25 September 2024, some provisions of the Act of 14 June 2024 on the protection of whistleblowers (Journal of Laws of 2024, item 928, consolidated text) shall enter into force (hereinafter referred to as: "Act"), implementing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law of 23 October 2019 (OJ EU.L 305, p. 17). Due to the complexity of the regulations and their extensiveness, the article will be limited to the most important information that is important for entrepreneurs in terms of the provisions entering into force on the above-mentioned date, and therefore our comments will only concern the issue of the so-called internal reports.
For the purposes of order, it is necessary to explain the basic concepts specifically defined in the Act. The first of these is "internal report", which, pursuant to Article 2, point 16 of the Act, means the oral or written provision of information about a violation of the law to a legal entity. "Legal entity" is a private or public entity, while the concept of a private entity - which is important for entrepreneurs - is understood as a natural person conducting business activity, a legal person (including limited liability companies, simple joint-stock companies and joint-stock companies) or an organizational unit without legal personality to which the law grants legal capacity (including general partnerships, professional partnerships, limited partnerships, limited joint-stock partnerships), or an employer, if they are not public entities.
At the outset, it should be noted that the obligation to implement the internal reporting procedure by 25 September 2024 applies to legal entities for which, as of 1 January or 1 July of a given year, at least one employee performs paid work 50 people. The provisions of the Act clearly state that the above limit includes employees in full-time equivalents or persons performing work for remuneration on a basis other than an employment relationship, regardless of the basis of employment. This means that the above 50-person limit will, as a rule, also include persons performing work for the employer on the basis of civil law contracts, such as a cooperation contract, a contract of mandate or a contract for specific work.
It is also worth emphasizing that the violations of law that may be reported by whistleblowers under the provisions of the Act have been enumerated in the content of Article 3 of the Act and include violations such as, among others, those concerning corruption, product safety, environmental protection, public health, public procurement, services, products and financial markets. Therefore, not every report will be covered by the internal reporting procedure, but only those that may be qualified as a violation of law covered by the statutory catalogue. Therefore, the reporting person will not always obtain the status of a whistleblower. and will be protected under the provisions of the Act.
2. Internal reporting procedure.
Article 25 section 1 of the Act specifies the minimum requirements and content that should be included mandatory procedure to be implemented internal reports. In particular, it should be noted that the entrepreneur should designate an internal organizational unit or a person within the organizational structure authorized to receive internal reports. The legislator also allows these activities to be transferred to an external entity. The internal reports procedure should also specify in detail the methods of transmitting internal reports, which may be made orally or in writing. There is no obligation for both of these methods to be provided for in the procedure.
Oral reports may be made by telephone or by means of electronic communication. A report made orally should be documented with the consent of the whistleblower. Documentation may take the form of a recording of the conversation or a complete and accurate transcription of the conversation. A report made via an unrecorded line should be confirmed in the form of a record of the conversation. In addition, an oral report, at the request of the whistleblower, may be made during a direct meeting, which should take place within 14 days of the date of receipt of the request regarding the report. A report made during a meeting should also be documented by recording the conversation or drawing up minutes of the meeting.
In the case of reports submitted in writing, the provisions of the Act only provide for the possibility of making such a report. in paper or electronic form. According to the regulations, in practice such reports can therefore be made, for example, by sending an e-mail message to a dedicated e-mail address. A report in paper form could be made, for example, by placing a document containing the report in a specially placed box at the workplace. The regulations leave some freedom in this respect, but it is important to remember that the method of making a report specified in a given organization should meet statutory requirements, in particular those preventing unauthorized persons from establishing the identity of the whistleblower.
The private entity should designate an organizational unit or an authorized person to take follow-up action. In this case it is not possible to appoint an external entity. It is also permissible for the person or organizational unit authorized to take follow-up action to be the same person or organizational unit authorized to receive internal reports, provided that this person or organizational unit ensures impartiality.
It should be emphasized that, according to the current wording of the regulations, the procedure does not have to provide for anonymous reporting, and this is only a possibility for the employer. However, it is necessary that, in accordance with the content of art. 8 sec. 1 of the Act, the personal data of the whistleblower, allowing for the establishment of his identity, are not subject to disclosure to unauthorized persons, unless the whistleblower, i.e. the person reporting the violation, consents to the disclosure of such data.
Follow-up action means any action taken to clarify the validity of the report and to counteract the infringement of the law that is the subject of the report.
3. Protection of whistleblowers.
An important element of the Act is the whistleblower protection mechanism. Article 11 of the Act directly prohibits retaliatory actions against whistleblowers. Whistleblower protection may vary depending on whether the whistleblower is an employee or another person. It is inadmissible, among other things, to refuse to establish an employment relationship with a whistleblower, to terminate or terminate an employment relationship, to reduce the amount of remuneration, etc. A detailed list of prohibited actions is provided for in Article 12, Section 1 of the Act. At the same time, in the event of retaliatory actions, the whistleblower is entitled to claim compensation in an amount not less than the average monthly remuneration in the national economy in the previous year.
In addition, a person who, wanting another person not to report, prevents them from doing so or significantly impedes them from doing so, is subject to criminal liability. Taking retaliatory action against a whistleblower and disclosing the identity of a whistleblower in violation of the provisions of the Act are also subject to criminal sanctions.
It should be noted that the Act also provides for protection for people helping in making the notification and people associated with the whistleblower. The Act therefore extends the list of persons protected against retaliatory actions to include persons who could face such actions in connection with actions taken to enable reporting a violation, whistleblower's co-workers, persons close to the whistleblower, including members of his/her family.
4. Concluding remarks.
As indicated in the introduction, the provisions of the Act regarding the obligation to implement the internal reporting procedure shall enter into force on 25 September 2024. Failure to implement the procedure or implementation of a procedure that does not meet the statutory requirements, pursuant to Article 58 of the Act, shall be subject to a fine. The provision of Article 58 of the Act is not precise in this respect and at the moment it is not fully known how the relevant public administration bodies and common courts will interpret it. The amount of the fine provided for in the provisions of the Labour Code is limited to PLN 45,000.00. In turn, the fine provided for in the provisions of the Penal Code may amount to up to one million PLN.
If the internal reporting procedure is not implemented, it cannot be ruled out that such failure may become a subject of interest to the National Labour Inspectorate.
We will certainly come back to how this Act will work in practice.
author:
Maciej Oczkowski – attorney
This entry contains general information on the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend that you seek the assistance of a law firm for legal advice.