Legal Alert: Whistleblower protection. The new Polish Government introduces draft law and expedites progress

In this guest post, Marta Trzeciak, attorney at law at Ostrowski i Wspólnicy, a Whistlelink partner, provides an insightful analysis of the key changes in the most recent draft law on whistleblower protection in Poland. 

On January 11, 2024, the Governmental Legislation Centre’s website published the next draft of law, containing changes introduced by the new Ministry of Family, Labour, and Social Policy. What’s next and what innovations have been introduced in the latest draft?

The draft law was referred to the Standing Committee of the Council of Ministers for urgent consideration. This is due to the expired deadlines for implementing the Directive and ongoing proceedings against Poland before the CJEU.

The new government has seemingly decided to proceed with the existing draft, making some modifications. The draft law has gone through most stages of the legislative procedure in the previous term and is now awaiting consideration by the Standing Committee of the Council of Ministers. The planned deadline for adopting the draft law is in the first quarter of 2024, after which it will be sent to the Sejm (the Polish Parliament).

Key changes in the latest draft law:

1. Extended timeframe for establishing procedures and internal reporting channels

The extension of the vacatio legis of the draft law is very welcome – It states that the law will come into effect one month after publication. Legal entities will have an additional month from the date of the Act’s entry into force to establish an internal notification procedure. The same timeframe applies to external notification procedures established by public authorities.

This provides a total of two months to establish the procedure, starting from the publication of the Act in the Official Gazette. This is a more realistic deadline compared to the current draft’s 14-day timeframe.

2. Reduced consultation period for the internal reporting procedure with trade unions

The previous draft required mandatory consultation with the company trade union organisation or representatives of the legal entity’s workforce when establishing the internal reporting procedure. The consultations were initially set to last between 7 and 14 days from the legal entity’s submission of the draft procedure. The latest draft shortens this consultation period to a minimum of 5 days and a maximum of 10 days.

3. Protection of whistleblowers regardless of public interest

The new draft removes the condition that the whistleblower’s report must relate to the public interest, which was met with criticism in 2023. The previous draft stated that: “A whistleblower is subject to the protection of Chapter 2, provided that the whistleblower had reasonable grounds to believe that the information in the whistleblowing report or public disclosure concerns the public interest, was true at the time of disclosure, and the information constitutes whistleblowing.” This raised concerns that many whistleblowers would not be protected if their reports did not pertain to the public interest.

Determining whether a matter involved public or private interest was often challenging, casting doubt on whistleblower protection. The latest draft eliminates this condition. This is an appropriate change as the condition did not arise from the EU Whistleblowing Directive.

4. Ombudsman as the body accepting external reports

Throughout the drafting process, there has been a debate over which authority would receive and support external reports from whistleblowers. Initially, it was proposed that the Ombudsman would fulfill this role, but they strongly opposed the idea. Subsequent drafts suggested the State Labour Inspectorate as the main body for accepting external reports.

However, the latest draft reverts to the original plan, designating the Ombudsman as the authority to receive and verify external reports. The Ombudsman will then forward the reports to the relevant public authorities for further action.

5. Optional requirement for a Certificate of Protection

In the case of external notifications, the previous draft stipulated that the public authority, upon establishing the likelihood of a legal violation, would issue a certificate confirming whistleblower protection. This certificate would only be granted if the whistleblower provided a declaration, under penalty of false testimony, stating that the reported information about the law infringement was true at the time of notification. The whistleblower was to be protected only after this certificate was issued.

The latest draft introduces significant changes in this regard. The certificate will now only be issued upon the whistleblower’s request and no longer requires a prior declaration under criminal liability. The issuance of the certificate is also no longer a prerequisite for protection.

Ostrowski i Wspólnicy will continue to monitor the legislative work on the Polish law on whistleblower protection. We invite you to follow our blog (in Polish), where we keep you updated on the ongoing work.

Would you like to learn more about a whistleblowing service and safe internal reporting channels? You can learn more about Whistlelink’s all-in-one solution here or book a free demo of our system!