Whistleblowing – the history of the Whistleblower Directive

A whistleblower must sometimes make difficult decisions before reporting a breach of law that may significantly affect his or her situation. Therefore, in order to protect whistleblowers, the directive of 23 October 2019, commonly known as the Whistleblower Directive, has been introduced. Nevertheless, the Whistleblower Directive does not cover all the aspects regarding the protection of whistleblowers, leaving a certain degree of discretion to national governments.

Poland has not yet implemented the Whistleblower Directive and, as legislative work on the bill is currently underway, it is difficult to predict the final form of the Whistleblowers Act.  However, it is worth mentioning that a new bill was presented on 6 April 2022, introducing several developments compared to the previous bill of 14 October 2021.

What are the changes introduced to the new bill?

The changes introduced in the new bill include specifically:

• Every legal entity with 50 or more workers will have to establish an internal whistleblowing procedure. The previous bill referred to an employer with more than 50 workers;
• The creation of an internal whistleblowing procedure. In the previous bill, an internal reporting procedure was to be established by the employer;
• The  internal whistleblowing procedure must be presented to each worker at the recruitment stage or during negotiations preceding the execution of the contract;
• It will be no longer possible to make anonymous reports. Previously, it was possible for employees to determine a procedure for anonymous reports;
• Certain regulations have been introduced for processing personal data;
  Some statutory definitions have been modified, including, for example, “work-related context”.

What effect do the changes to the bill have?

The changes introduced to the new bill substantially affect its scope of application, i.e. from the entity that has to introduce the internal whistleblowing procedure (it is not only an employer who employs more than 50 people based on an employment contract) to its application in practice.

An example is the removal of the option to accept anonymous reports. In the previous bill, the employer could decide whether it will accept and follow up on anonymous reports of breaches from a John Doe. This is not possible in the new bill, which means that Poland, pursuant to Recital 34 of the Whistleblower Directive, has decided not to accept anonymous reports. The grounds of the new bill presents practical and functional arguments concerning the possibility of contacting anonymous whistleblowers and preventing potential unfounded reports.