Whistleblowing in Poland
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Draft bill on whistleblowers protection
On June 7, 2022, the Minister of Family and Social Policy published the third draft act on introduction of new whistleblowing system in Poland, i.e. act on protection of persons reporting violations of the law, i.e the Polish Whistleblowers Protection Act.
The draft is not yet enacted by the Parliament. Currently the draft bill is being reviewed in the legislative process, but due to Poland exceeding the deadline for implementing Whistleblower Directive 2019/1937 (until December 16, 2021), work on the act will probably accelerate and the act may enter into Polish legal system soon.
Whistleblowing system in Poland – key facts
|Employers obliged to introduce whistleblowing procedures||All employers over 50 people|
|Deadline to introduce whistleblowing procedures||
|Definition of whistleblower||A person employed under an employment contract or a similar contract, as well as apprentices and candidates and former employees – reporting violation of law|
|Anonymous whistleblower||Not considered as whistleblower within the meaning of Polish law|
|Prohibition of retaliation||Broad prohibition in any form|
|Incentive for whistleblowers||No mandatory incentives|
|Acceptable forms of violations reporting||Oral, written and electronic|
|Notifications retention period||12 months from the date of completion of follow-up|
Deadlines for introducing whistleblowing procedures
The deadline for introducing whistleblowing programs under the Polish law depends on the size of the obliged entity:
|Employers employing 50 – 249 people, entities from the financial and public sector||until December 17, 2023|
|Employers employing 250 + people||1 month from the date of entry into force of the act|
Consultation of whistleblowing programs with trade unions
Implementation of reporting procedures, i.e. may require consultation with trade unions or employee representatives. The current draft introduces rules to the union law that requires to run the consultations for a period not shorter than 7 days and not longer than 14 days.
Definition: Whistleblower / Poland
The most recent government’s proposal for the act expands the catalog of protected persons – previously it only covered persons who were in an employment or similar relationship with the employer at the time of reporting the violation. Currently, the project extends this scope and includes protected persons also those who are not a party to an employment or similar relationship – in particular, potential employees (candidates, e.g. in the recruitment process) and former employees. Apprentices were also entered into the catalog of protected persons.
Anonymous whistleblowers (anonymous reporting)
The recent draft act does not regulate the issue of introducing internal procedures for anonymous reporting, as a consequence the obliged entities may, but do not have to introduce appropriate internal regulations (in the internal whistleblowing systems). The act does not even impose an obligation to act on the basis of anonymous reports from whistleblowers. If the identity of an anonymous whistleblower is revealed, he or she is subject to the same protection as other whistleblowers.
Retaliation and liability
Prohibition of retaliation against a whistleblower
The draft law extends the prohibition of retaliation to include attempts or threats to use such actions. The catalog of prohibited activities remains open – the act sets only the minimum, which has been extended to include coercion, intimidation, exclusion, mobbing, discrimination, harassment, causing financial loss, as well as causing other non-material damage, including reputational damage, especially in social media.
Whistleblowing and liability
Both the whistleblower and the aggravated person is entitled to damages as a result of knowingly reporting false information by the whistleblower. Whistleblower, in the event of retaliatory actions against him, have the right to claim compensation in full amount, while the aggravated person by the whistleblower may seek compensation from the whistleblower in the amount of at least the average salary in the enterprise sector in force on the date of reporting or public disclosure of information.
Who has the burden of proving retaliation?
In the event of taking any action described in the Whistleblowers Protection Act, or other actions taken by the employer, the whistleblower is presumed to be retaliatory actions. It is up to the employer to prove that the actions were taken for objective and duly justified reasons.
Reporting violations by whistleblower (internal reporting procedures)
Incentives for whistleblowers
The new draft Act regarding whistleblowing system indicates that the internal procedure introduced by the obliged entity may additionally define a system of incentives to use the internal procedure. It is not a mandatory element, and its introduction and the manner of its implementation are left to the discretion of the employer, e.g. by awarding material or cash prizes.
Form of whistleblowers report (reporting channels)
An important change in the newest draft bill regarding whistleblowing system (Act on Whistleblowers Protection) is the definition of the methods filing a violation report (i.e. how to report breaches). Previously, only oral and written notification were acceptable, while now the whistleblower shall be allowed to report the infringement also in electronic form.
Internal procedure – archiving whistleblower reports
The form of collecting reports, incl. archiving oral telephone reports has also been defined – they must be stored in the form of recordings that can be searched or by complete and accurate transcription.
Retention period for whistleblower reports
Period of compulsory data retention in the register of internal reports has been reduced from 5 years to 12 months from the date of completion of the follow-up activities.
Whistleblowers’ personal data protection
The newest draft bill on whistleblowing system (Act on Whistleblowers Protection) also improves data protection regulation to be compliance with GDPR (general data protection regulation). The change consists primarily in a clear indication that the data of whistleblower incl. whistleblower’s identity is subject to strict personal data protection, this also includes all other information enabling identification. The exception to this rule is when the disclosure of whistleblower’s identity is required by law in the context of proceedings conducted by public authorities. Disclosing the whistleblower’s identity requires informing the reporting person and explaining the reasons for the disclosure of his data. Personal data processed in connection with the acceptance of the application are stored for no longer than 15 months from the date of completion of the follow-up activities.
The newest draft bill of Act on Whistleblowers Protection introduces lighter criminal liability sanctions for violating of law, e.g.:
- failure to establish an internal procedure or incorrect establishment of a procedure – a fine (initially – imprisonment up to 3 years)
- committing retaliatory actions – imprisonment up to 2 years (initially – 3 years imprisonment)
- obstructing or attempting to obstruct reporting or public disclosure – a fine or restriction of liberty (initially – even imprisonment up to 3 years).
FAQ – whistleblowing in Poland
What is the penalty for failure to implement whistleblower procedures?
Failure to establish whistleblowing procedures in a timely manner is punishable by a fine.
Who is required to implement whistleblowing procedures?
Any employer who employs over 50 people.
What is the deadline for implementing whistleblowing procedures in Poland?
Employers employing 50 – 249 people, entities from the financial and public sector until December 17, 2023. Employers employing 250+ people within 1 month from the effective date of the act
Who is a whistleblower within the meaning of Polish law?
A person employed under a contract of employment or similar, as well as apprentices and applicants and former employees.
Is the employer obliged to consider the anonymous report of the whistleblower?
Basically – no. Such a notification is not covered by the Polish Act on the Protection of Whistleblowers.
What incentives for whistleblowers are mandatory?
The Polish whistleblowing act does not provide for mandatory incentives.
What forms of whistleblower reports are allowed?
Written, oral and electronic form.
How should telephone reports of whistleblowers be archived?
They should be documented in the form of searchable recordings or by complete and accurate transcription.
How long should whistleblower reports be kept?
12 months from the date follow-up has been completed