On 14 June 2024 the Sejm adopted the Senate’s amendments to the Act on the protection of whistleblowers (the “Act”), thereby ending the parliamentary stage of proceedings on the legal act implementing the provisions of 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 (the “Directive”).
We informed you about specific drafts prepared during the work on the Act in previous editions of HR In the Know 2/2024, 4/2024, 7/2024.
We have obtained information indicating that the Act was submitted on Monday, 17 June 2024 to the President for signature. He should sign it within 21 days (he may also decide to refer it to the Constitutional Tribunal or use the so-called veto right).
Given the above, it is very likely that the Act will soon be signed by the head of state and published in the Journal of Laws. This, in turn, will initiate a three-month vacatio legis, after the lapse of which all employers will be obliged to comply with the new provisions and the entities specified in the Act will additionally be obliged to implement appropriate internal reporting procedures. Consequently, the time remaining to fulfill these obligations may prove insufficient for preparing and implementing internal reporting procedures from scratch. Therefore, it is advisable to start preparations now, rather than waiting for the legal act to be announced in the Journal of Laws, especially since the final form of the Act is already known.
e would like to remind you, in particular, that the obligation to introduce such procedures in their organizations will apply to legal entities for which, as of 1 January or 1 July of a given year, at least 50 individuals perform paid work. This number includes not only employees, but also persons providing work under other legal basis, in particular under civil law contracts.
The Senate introduced a total number of five amendments to the Act originally adopted by the Sejm, which we described in HR In the Know 7/2024. Most of them were only of an editorial nature and served to clarify certain issues thereby eliminating doubts in the interpretation of some provisions of the legal act. All of the above Senate’s amendments were accepted by the Sejm. The most significant amendment is the removal of labour law from the catalogue of breaches of law that may be reported or publicly disclosed by a whistleblower. This amendment was justified by the fact that the Directive does not include labour law in the list of areas whose breaches must be covered by the provisions on the protection of whistleblowers. It follows from the fact that EU and Polish labour law offer a number of protections for employees who disclose legal breaches, providing them with various avenues for reporting such breaches at work. The above change should be assessed positively because granting whistleblower status to individuals reporting potential breaches of labour law could be misused by employees to obtain additional protections, including raising claims against the employers for monetary or non-monetary damages under the Act for retaliatory actions in situations where these claims would overlap with claims arising from labour law provisions.
Another change in the final text of the Act worth mentioning is the introduction of the whistleblower’s right to free legal aid and free citizens counselling within the meaning of the Act on free legal aid, free citizens’ counselling and legal education, even if the whistleblower can afford the costs of paid legal assistance.
For further information, please contact:
Lukasz Burakowski, Linklaters
lukasz.burakowski@linklaters.com
