Navigating New Polish Law on Protection of Whistleblowers

On 25 June 2024 a new Polish whistleblowers protection act, from 14 June 2024, (“WPA”) was published introducing the so-called EU Whistleblower Directive into the Polish legal system [ Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law].

This whistleblowing law is important in terms of the protection of whistleblowers and encouraging them to report wrongdoing.

This article sheds light on some important topics of the new regulation in Poland.

1. What is the whistleblowers protection?

The WPA results in two levels of protection of whistleblowers:

a. ban on retaliatory measures

b. means of protection

The WPA includes a long list of measures that cannot be used against workers reporting a concern about malpractice such as the refusal of employment, dismissal of workers, reduction of salary, withholding promotion, transposition of the working place, bullying and discrimination etc. The employer has the burden of proof that the measures imposed on the worker are not of a retaliatory nature. If an employer takes adverse action against a whistleblower, the individual may have grounds for legal recourse claiming compensation for damages in the amount of at least the statutory average monthly salary or claiming compensation for pain and suffering. It should be stressed that the whistleblower cannot waive his/her protective rights resulting from reporting about wrongdoing.

2. What types of breaches of law can be subject to whistleblowing under WPA

Complaints of whistleblowers can relate especially to reporting about violations in the following fields: 

corruption, public procurement, services, instruments and financial markets, money laundering counteracting, financial terrorism fighting, security of products and transportation, protection of environment and radiological protection, security of food and feed and public health.

The scope of fields in which the breaches may occur and be reported seems to be of aa very wide range and these breaches are relevant in the light of whistleblowing laws as they are all in the public interest. However, cases covered by provisions of professional secrecy of lawyers, doctors, judges as well as by provisions about secrecy within criminal investigations will not be covered by whistleblowing regulations. The question arises as to whether cases of personal grievances such as bullying or discrimination at work shall also by subject to the whistleblowing law. The answer to this question should be affirmative as long as these breaches will be in the public sphere.

3. Internal and External Reporting by Whistleblowers

The WPA differentiates between internal and external reporting about wrongdoing.

(1) The internal reporting applies to entities which employee at least 50 individuals and these entities are obliged to create their own whistleblower's policy. This policy shall among other things include:

•  an individual or points of contact to whom the whistleblower can raise his /her report
•  manner in which the report shall be provided (e.g. at indicated email address, in writing or by phone)
• confirmation of the receipt of the report
• naming a person who will handle and assess the report and inform finally the whistleblower about the findings and further course of action along with notifying the Ombudsman in Poland or appropriate authorities in the EU if necessary
• deadline of handling the report not exceeding the term of 3 three months

Each entity must also maintain a report register that contains the following data:

• number of report
• nature of breaking the law,
• personal data of the whistleblower
• contact address of the whistleblower
• date of the report
• information about follow-up actions taken by the entity
• date of closing the whistleblower case

Finally, it should be stressed that entities when collecting information from and about whistleblowers act as personal data controllers in the meaning of GDPR (General Data Protection Regulation) and they are then committed to adhering safety and protection of collected data.

(2) The whistleblower is also entitled to report about wrongdoing directly to the Polish Ombundsman or to another (appropriate) public authority without the necessity to consummate the internal reporting in accordance with their whistleblower's policy. 

It is likely that whistleblowers will use an external way of reporting if they feel daunted or have some reasons to believe that they may face some adverse actions from the organization they are engaged by after the disclosure of information.

4. How can the whistleblowing policy help?

A good and transparent whistleblower policy can help entities to handle, protect and encourage whistleblowers to report wrongdoing within their organization. We can create a top – quality whistleblowing policy tailored to your needs and expectations that will be of assistance when applying the new whistleblowing law in practice. For more information please contact us at office@drlewandowski.eu