The Polish Whistleblower Protection Act signed into law by the President

The Whistleblower Protection Act (hereinafter also: the “Act”) has already been signed by the President. This means that it will be published in the Journal of Laws very shortly and the requirements concerning internal whistleblower reporting will come into force within approximately three months with regard to all of the entities covered by the Act.

The Act requires the following entities (among others) to establish local procedures and confidential channels for reporting breaches of the law:

• private entities employing at least 50 individuals (regardless of the legal form of employment);
• entities operating in the financial sector, regardless of the number of employees (including, but not limited to, banks, investment funds, insurance companies, reinsurance companies, mutual funds, pension management companies, pension funds, brokerage houses and investment fund companies); and
• public entities, regardless of the number of employees (excluding offices or organisational units of a municipality (gmina) or district (powiat) with fewer than 10,000 inhabitants).

The legislative process, which lasted more than 2.5 years and involved the drafting of more than a dozen bills, the introduction of revisions by committees and, ultimately, amendments by the Senate, has finally come to an end. The most important changes that were adopted during the last phase include:

• The Act no longer covers reports concerning labour law.

Whistleblowers reporting labour law violations will not be subject to the protection otherwise afforded by the Act. This reflects the approach of the legislature whereby it reverted to the concept where the statutory reporting channel is primarily intended to apply to violations affecting the public interest and not that of individual employees. This does not mean, however, that employees will not be protected at all, as the general principles of the Labour Code concerning, for example, an employer’s duty to prevent mobbing still apply. In addition, market practice shows that employers allow employees to report all kinds of violations, including labour rights violations. However, the process of investigating these reports can now be more tailored to the specific nature of such reports.

• A provision has been added stating that private entities that are members of a group of companies may establish a common procedure for internal reporting, provided that compliance with the Act is ensured.

However, the practical use of this provision is minimal. The relevant provision stipulates that, even when a common reporting procedure is established, compliance with the Act must always be ensured, and the Act distinguishes between the possibility of “accepting reports” (which can be done by the entity subject to the Act or by a designated external party) and “carrying out follow-up activities” (which can only be done by the entity subject to the Act). This means that, although a corporate group may have a single procedure, it is still the responsibility of each of the members of the corporate group to follow up on reports individually.

We would also like to remind you that the Whistleblower Protection Act introduces a number of new obligations aimed at providing adequate protection mechanisms for whistleblowers. The Act sets out, among other things, extensive requirements on how the procedure should be structured, mandates the authorisation of employees to be involved in reporting proceedings and the keeping of a register of reports, as well as dictates which reports to accept and how to handle them. These requirements are much more detailed than those under legacy regulations (e.g. the Act on Public Offerings or the AML Act). This means that even if you have reporting channels in place under other laws or corporate whistleblowing systems, these are likely to be insufficient.

The effective date for the new legislation for private entities is three months after the date of publication in the Journal of Laws. There are criminal penalties for failure to comply with the requirements under the Whistleblower Act, including a fine, limitation of liberty or even imprisonment.