Employment & labor law

The European Union unifies the rules for the protection of whistleblowers

The term whistleblower, derived from the American legal culture, means a person reporting irregularities in the functioning of institutions of a financial or corporate nature. For obvious reasons, such a person was usually exposed to negative consequences on the part of the employer, which led to the need to legally regulate the protection of such persons in connection with the submitted notification. In view of large discrepancies in the level of protection of whistleblowers occurring between individual countries, the European Union also recognized the necessity of unifying the situation of persons reporting irregularities in a given institution employing them.

WHO will be able to become a whistleblower?
The Directive states that whistleblowers will be able to become not only employees, but also self-employed, shareholders and stockholders in companies and persons in management positions in enterprises, people working under the management of contractors, subcontractors and suppliers, candidates for a job position if they learned about irregularities during recruitment and even former employees.

WHO is the obligation to introduce procedures for the protection of whistleblowers?
The directive, adopted by the European Parliament, provides that in every institution – public or private, employing at least 50 people – there will be a procedure for reporting irregularities or abuses at the workplace.

HOW CAN the whistleblowers report irregularities?
The Directive introduces three procedures for reporting irregularities:

• internal procedure for enterprises;

• an external procedure to report irregularities directly to the competent state authorities;

• a public procedure that regulates the disclosure of information about infringements found publicly.

WHAT PROTECTIVE MEASURES SHALL the directive give to whistleblowers?
The main guarantor of whistleblower protection is to be their anonymity while reporting irregularities to state authorities. In the case of consequences from the party concerned by the whistleblower, the latter will be entitled to compensation. Importantly, in the case of such a process, the burden of command should be reversed – there will be a presumption that the damage arose as a result of retaliatory actions and the entity to which the notification relates will have to prove that such actions were not taken against the whistleblower. In addition, the Directive provides for sanctions for entities (both natural persons and collective entities), including for obstructing the submission of reports by whistleblowers and breach of the duty of confidentiality.

The implementation of the Directive in Poland will force the adoption of uniform provisions regulating the issue of signaling irregularities in the operation of private and public entities, because currently this regulation is not consistent (its elements can be found, inter alia, in the draft Act on the liability of collective entities of January 10, 2019 which was submitted to the Sejm or in the draft Act on public-law disclosure). Implementation of the provisions of the Directive to the Polish legal order will, on the one hand, regulate the manner of reporting cases of corruption, tax fraud and other irregularities, and on the other will protect against negative consequences of persons who detect and report such irregularities

Author team leader DKP Legal Alicja Myśluk-Landowska
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