Whistleblower

Whistleblowers play an incredibly difficult role within a company, very often encountering negative reactions from colleagues and superiors. However, every business owner employing staff must be aware that whistleblowers and their actions are legally protected. This protection stems from EU directive provisions and the Polish Whistleblower Protection Act. Moreover, a whistleblower plays a very important role in contributing to the proper functioning of a company. In this article, you will learn who a whistleblower is, what exactly they do, and what whistleblower protection entails.

Table of Contents:

1. The Whistleblower in a Company – Who are they?
2. Who Can Be a Whistleblower in a Company?
3. What Does a Whistleblower Report?
4. Is a Whistleblower Required in Every Company? Employer Obligations
5. Whistleblower Protection – Prohibition of Retaliatory Actions
6. Whistleblower Protection – Support Measures and Protection Against Retaliatory Actions

The Whistleblower in a Company – Who are they?

A whistleblower (also known as a demasker) is a person who, acting in the best interest of all employees and the organisation itself, reports legal irregularities within the company to the appropriate authorities. They report detected unethical or unlawful activities:

• to internal units – i.e., teams or individuals within the company responsible for ensuring legal compliance, handling complaints, etc.; for example, to the management board, their superior, or the compliance department,
• to external bodies – meaning teams or institutions outside the company responsible for overseeing legal compliance; e.g., to the National Labour Inspectorate or law enforcement agencies,
• to the public – i.e., revealing irregularities in such a way that information about them reaches the widest possible audience both inside and outside the company; for example, by contacting a TV investigative journalism programme or describing the situation online.

Due to such “activities”, a whistleblower in a company may face animosity from colleagues or superiors, especially those responsible for the reported violation. It is therefore very important that everyone in the organisation is aware that whistleblowers are incredibly necessary. They act in the common good of the entire company, not only protecting employee rights, such as ensuring proper treatment of staff, but also often safeguarding the organisation from severe penalties associated with long-term non-compliance with the law.

It should also be noted that whistleblowers are covered by legal protection under whistleblower protection regulations, meaning no retaliatory actions can be taken against them.

According to the definition in Act No. 928 of 14 June 2024 on whistleblower protection, a whistleblower is a natural person who reports or publicly discloses information about a legal violation obtained in a work-related context.

Who Can Be a Whistleblower in a Company?

A whistleblower is not a specific position or function officially granted by a company or external institution. The question is therefore not “who can become a whistleblower in a company”, but – who can be a whistleblower in a company. It is any person who knows about a legal violation in a given workplace and decides to report it.

Crucially, a whistleblower can be more than just an employee of the company to which the notification relates. Detected irregularities can also be reported by an intern, subcontractor, supplier, contractor, person performing a specific task (zleceniobiorca), shareholder – i.e., anyone who is professionally connected with the company in some way, and even a person who has not yet entered into an employment relationship but was a job candidate or volunteer. The catalog of persons who can become whistleblowers in a company is covered by Article 3.1 of the Whistleblower Protection Act.

However, this does not mean that any person can make any accusation. Whistleblower protection provisions apply only to persons who:

• make an internal report, external report, or public disclosure in accordance with the Act,
• have reasonable grounds to believe that the reported information about violations is true.

What Can a Whistleblower Report?

The Whistleblower Protection Act lists numerous areas of non-compliance that fall under its provisions. A whistleblower can therefore report non-compliance with any of the legal provisions related to:

• corruption,
• public procurement,
• financial services, products, and markets,
• prevention of money laundering and terrorist financing,
• product safety and compliance,
• transport safety,
• environmental protection,
• radiation protection and nuclear safety,
• food and feed safety,
• animal health and welfare,
• public health,
• consumer protection,
• protection of privacy and personal data,
• security of networks and information systems,
• financial interests of the State Treasury of the Republic of Poland, local government units, and the European Union,
• the internal market of the European Union, including public competition rules, state aid, and corporate taxation,
• constitutional freedoms and human and civil rights – occurring in relations between individuals and public authorities and unrelated to the fields indicated above.

Is a Whistleblower Required in Every Company? Employer Obligations

As mentioned, a whistleblower is not a specific position or officially held function, and therefore is not chosen by the company. Thus, there doesn't have to be a whistleblower in an organisation – one “appears” when an employee notices irregularities in the company and decides to report them. What is important, however, is that companies employing more than 50 employees will be obliged to:

• Prepare and implement internal reporting procedures – in accordance with whistleblower protection principles, and these procedures must be consulted with a trade union or employee representatives (in the absence of a company trade union). “Consulted” means that a discussion is sufficient. The company does not need to obtain the consent of unions/representatives for its provisions.
• Establish internal reporting channels – i.e., official avenues allowing whistleblowers to make internal reports in a manner compliant with the requirements of the Act. Importantly, these channels must meet the following requirements:
• the whistleblower's identity may be disclosed only to personnel responsible for receiving reports and taking follow-up actions,
• reporting channels must include at least the acceptance of written (paper or electronic) or oral notifications,
• the whistleblower must receive confirmation of receipt of the report within 7 days of its submission.
• Maintain a register of internal reports – in accordance with the principles of the EU directive and the Act implementing its provisions in Poland.
• Conduct follow-up actions – such as initiating investigative procedures and internal inquiries. The company must designate impartial personnel responsible for communicating with the whistleblower and taking follow-up actions, and the whistleblower must be informed of these actions within a maximum of 3 months from confirming receipt of the report.
• Ensure whistleblower protection – in accordance with the guidelines of the Act, which are presented later in the text.

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The provisions apply to companies that employ at least 50 people (calculated in full-time equivalents), regardless of the form of contract. The Act also covers specific entities for which the provisions apply irrespective of the number of employees threshold.

Whistleblower Protection – Prohibition of Retaliatory Actions

Individuals working for a company or maintaining professional contact with it are usually the first to notice various irregularities regarding legal compliance.

The need to introduce whistleblower protection provisions arose from the European Parliament and EU Council's recognition that: "Potential whistleblowers often refrain from reporting their concerns or suspicions for fear of retaliation. Therefore, the importance of ensuring balanced and effective whistleblower protection is increasingly acknowledged [...]".

EU and national regulations have therefore established measures for whistleblower protection, which prohibit retaliatory actions against persons reporting legal violations. Such actions, according to Article 12.1 of the Act, include, among others:

• suspending the reporter from official duties,
• sending the whistleblower on compulsory unpaid leave,
• dismissing the reporter or taking equivalent action (e.g., terminating a B2B contract),
• demoting the whistleblower or withholding their promotion,
• transferring the reporter's duties to another person,
• changing the whistleblower's place of work or working hours,
• reducing the reporter's remuneration,
• withholding training for the whistleblower,
• issuing a negative performance review or negative opinion on the reporter's work,
• imposing any disciplinary measure, reprimand, or other penalty on the whistleblower,
• applying coercion, intimidation, mobbing, exclusion, discrimination, or unfavourable or unfair treatment towards the reporter,
• failing to convert the whistleblower's fixed-term employment contract into an indefinite-term contract when permanent employment was expected to be offered,
• failing to extend the reporter's fixed-term contract or its premature termination,
• acting to the detriment of the whistleblower, e.g., by damaging their reputation or depriving them of income,
• blacklisting the reporter based on an informal or formal sectoral or industry agreement, which would hinder or prevent the whistleblower from finding future employment in that sector/industry,
• prematurely terminating or cancelling the whistleblower's service or goods contract, resulting in financial loss or loss of income,
• actions aimed at hindering future employment in a given sector or industry based on an informal or formal sectoral or industry agreement,
• referring the whistleblower for psychiatric or medical examinations,
• causing other non-pecuniary harm, including violation of personal rights, particularly the whistleblower's good name.

Importantly, the employer will have to prove that the actions taken against the whistleblower are not retaliatory.

Whistleblower Protection – Support Measures and Protection Against Retaliatory Actions

The directive imposes on EU member states the obligation to provide potential whistleblowers with specific support measures:

• free, open access to information and advice regarding legal protection and entitled rights,
• assistance from competent authorities in contacts with bodies involved in protection against retaliatory actions,
• assistance from competent authorities in obtaining a certificate of qualification for the aforementioned protection,
• legal aid in criminal proceedings and cross-border civil proceedings, as well as in further proceedings,
• legal advice or other legal assistance.

The provisions also specify measures for protection against retaliatory actions:

• whistleblowers are not liable in connection with a report or public disclosure made in accordance with the law,
• reporters are not liable in connection with obtaining the information, provided they did not obtain it through committing a crime,
• providing whistleblowers with remedies in response to retaliatory actions, e.g., legal protection,
• ensuring the reporter compensation for any damage incurred.

The provisions of the Act primarily aim to protect whistleblowers, but also provide for measures to protect organisations, which are intended to prevent unjustified reports, i.e., criminal liability for false reporting and the possibility of seeking compensation from a whistleblower for unjustified accusations.

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