Introduction to the Law on the Protection of Whistleblowers – basic information about the new regulation

Since the beginning of 2024, there has been intensive work on the introduction of a law regulating the situation of whistleblowers. After many months of discussions and consultations, the Act on the Protection of Whistleblowers („the Act”) was directed to the President’s signature.

We invite you to read an article in which we will introduce you to the basic aspects related to the protection of whistleblowers in the Polish legal system.

Who is a whistleblower?

A whistleblower within the meaning of the Act is an individual who makes a notification or public disclosure of a violation of the law that he or she has acquired in a work-related context.

The work-related context means not only an employee employed under a contract of employment, but also, in particular, a temporary employee, persons employed under civil law contracts, a proxy, a member of the board of directors, a partner or an intern. The catalogue of persons who may make a notification or disclosure under the Act is quite broad. At the same time, the work-related context also includes information obtained in the course of recruitment or after the termination of the legal relationship on which the cooperation is based.

A violation of the law is defined as an act or omission that is unlawful or aimed at circumventing the law, such as corruption

unlawful or aimed at circumventing the law, which includes, inter alia, corruption, public procurement, transport safety, environmental protection, protection of privacy and personal data or consumer protection. The catalogue of violations covered by the Act is closed, however, it is permissible to extend the scope of violations through an internal procedure. Significantly and controversially – violations related to labour law in the broad sense have been removed from the scope of the Act.

Whistleblower protection

The protection of a whistleblower includes the prohibition of retaliatory actions such as, in particular, the refusal to establish an employment relationship, the termination or termination without notice of an employment relationship, the reduction of remuneration, the withholding of promotion or actions aimed at hindering future employment.

The requirement for a whistleblower to be protected under the Act is that the whistleblower meets the two conditions together:

• having reasonable grounds to believe that the information being notified or disclosed is true at the time, and
• the information relates to a violation of the law.

The protection in such a case applies from the moment the report is made.

Importantly, the prohibition on retaliation extends not only to the whistleblower, but also to the person helping to make the notification and to the person associated with the whistleblower.

Who is obliged to introduce internal procedures?

Internal regulations concerning the notification procedure must be introduced by entities with at least 50 persons performing paid work (as at 1 January or 1 July of the relevant year).

The state of employment requiring the introduction of an internal procedure shall be determined by taking into account the number of employees or persons performing paid work on a basis other than employment (if they do not employ other persons for such work) on a full-time equivalent basis. The legal basis of employment is not relevant.

What are the consequences of violations of the Act?

The first group of violations relates to failing to establish an internal notification procedure or establishing one in violation of substantive statutory requirements, preventing or materially impeding a notification, retaliation or disclosure of whistleblower data.

The second group, on the other hand, concerns the making of a report or public disclosure despite the knowledge that a violation of the law has not occurred.

Each of the above violations is subject to criminal liability.

Notwithstanding criminal liability, a whistleblower against whom retaliation has been committed is entitled to compensation in an amount not lower than the average monthly wage.

A person who has suffered damage due to a whistleblower consciously reporting or disclosing untrue information to the public will be entitled to compensation or damages for violation of personal rights from the whistleblower.

When will the Act enter into force?

The Act will enter into force three months after promulgation. The Act has already been directed to the President’s signature, which means that entrepreneurs have quite little time to introduce the relevant internal regulations, especially taking into account the criminal sanctions foreseen for not implementing the procedures required by the law.

In order to effectively implement the obligations provided for in the Act and, above all, to create an internal procedure that will make a real difference to the functioning of your organization, we recommend undertaking an internal analysis and starting to create internal documentation now.

We encourage you to contact our specialists, who offer comprehensive support both in auditing the current procedures and in creating a customized regulation tailored to your organization.