Whistleblowing and the employer’s criminal liability for retaliatory actions

What is whistleblowing?

Whistleblowing refers to the act of reporting legal violations by individuals who become aware of such breaches in the course of their work. The aim is to expose actions that are unlawful, unethical, or contrary to the public interest—while ensuring protection for the whistleblower.

The principles of whistleblower protection are currently regulated by the Act of June 14, 2024 on the Protection of Whistleblowers, implementing the EU Directive 2019/1937. According to the Act, a report may concern, among others:

• violations of the law regarding the protection of privacy and personal data,
• corruption,
• public procurement,
• environmental protection,
• anti-money laundering and counter-terrorism financing.

Who can be a whistleblower? Not only employees!

The protection extends beyond traditional employees. A whistleblower may also be:

• a contractor,
• a self-employed person,
• a job candidate,
• a volunteer,
• an intern,
• or a person working under the supervision of a contractor or supplier.

Reports can be made through:

• channels internal (to the employer),
• external (to the Ombudsman or public authorities)
• or publicly, under specific conditions.

To qualify for protection, whistleblowers must act in good faith—with reasonable grounds to believe that the reported information is accurate and relates to a genuine legal violation.

What does “prohibition of retaliation” really mean?

The effectiveness of whistleblower protection is based on the absolute prohibition of retaliation. This is not just a formal guarantee, but a key element in building a culture of trust and responsibility in organizations.

Retaliatory actions refer to any direct or indirect, work-related measures taken in response to a whistleblower’s report. These actions may violate the whistleblower’s rights or cause them unjustified harm. In some cases, they may potentially lead to such violations or harm.

In practice, these may include:

• termination of contract or termination of cooperation,
• reduction of salary, withholding of bonuses,
• demotion, refusal of promotion,
• harassment, mobbing, ostracism from the team,
• transfer to a less prestigious position or to another location,
• impeding access to training, projects or promotion,
• being put on an informal industry “blacklist”,
• negative references or making it difficult to find a job.

When is an employer criminally liable?

The new whistleblower protection law introduces criminal liability for retaliatory actions taken against persons reporting violations of the law, but also against persons assisting in making the report or persons associated with the whistleblower. What is important, the regulations cover not only formal employers, but also any person acting on behalf of or in the interest of the employing entity – e.g. superiors, HR managers or board members.

Retaliatory actions (as mentioned above) shall be subject to criminal liability, both in the case of one-off and persistent actions. The legislator has provided for such acts a fine, a restriction of liberty or imprisonment – in the most serious cases even up to 3 years.

The introduction of criminal sanctions has a clear preventive purpose – to discourage employers and managers from any reprisals against people who have decided to disclose irregularities. The protection of whistleblowers is no longer merely declarative – violations of this protection are subject to real criminal consequences.

It is worth emphasizing that this liability is independent of possible civil claims or proceedings before the labor court. What’s more, in the event that retaliatory actions are the result of a systemic lack of due diligence (e.g., lack of procedures, training, or supervision), liability may also affect a collective entity (e.g., a company) in accordance with the Act on the Liability of Collective Entities.

What can employers do to avoid retaliation against whistleblowers?

To ensure effective whistleblower protection and avoid retaliation, employers should take the following steps:

• Develop and implement whistleblowing procedures – enabling whistleblowers to report violations of the law in a confidential and safe manner.
• Training for employees and managers: Regular training helps to raise awareness of whistleblowing procedures and the consequences of retaliation. Knowledge of this topic fosters a culture of trust and openness in the organization.
• Ensure reports are confidential and anonymous: It is crucial that the identity of the whistleblower is protected from disclosure, which minimizes the risk of retaliation.
• Implement a non-retaliation policy: Develop and communicate clear policies prohibiting any retaliation against whistleblowers. Employers should also provide mechanisms to monitor and respond to possible cases of retaliation.

Do your procedures protect whistleblowers?

In order for whistleblower regulations to be effectively implemented and applied, employers must introduce appropriate procedures to ensure the safety and protection of whistleblowers. It is crucial that employees (and others who are protected under the Whistleblower Protection Act) do not fear reporting irregularities. They should be confident that their identity will be protected and that they will not be exposed to any retaliation.

The introduction of such mechanisms will create a culture of trust and responsibility in legal entities and ensure that reports are taken seriously, which should ultimately contribute to eliminating irregularities and increasing the effectiveness of the organization.

Any questions? Consult with us on implementing whistleblower protection procedures – ensure compliance with regulations and minimize legal risks. Feel free to contact us!