The whistleblower is a person from the work environment who reports a violation of the law that he or she has learned about in connection with the work performed. Characteristic of this role is the risk of being exposed to retaliatory actions after a report has been made. The whistleblower is not an accidental witness to the incident, but a person who received information about the violation in the course of and in connection with his work. This is not a formally designated function — this role is assumed when a breach is reported. The decision to become a whistleblower is voluntary, there is no formal appointment. The circle of people who can perform this role is wide - it can be an employee, a former person working with the organization, as well as partners, shareholders and even job candidates.
In Poland, the attitude towards whistleblowers is ambivalent — both socially and historically. They are often associated with reporting from the times of the Polish People's Republic, when cooperation with the security apparatus was equated with conformism, betrayal or actions to the detriment of other citizens. However, times have changed, and contrary to what liberal economic theory proclaims, the market does not regulate everything by itself. There is no “invisible hand of the market” — behind these processes there are real people who bear varying degrees of responsibility for the working conditions they create. From this perspective, the role of whistleblowers becomes extremely important in the context of ethics and the Labor Code. In international companies of the Western type, whistleblowers are seen as part of the system of compliance and attention to transparency. Despite this, in some social environments they continue to face distrust or are discredited. The key assumptions of the Act are: protection of whistleblowers from educational activities and the obligation to implement internal procedures for reporting violations. The first point concerns that employers may not take action against whistleblowers such as dismissal, reduction of wages or demotion and the second concerns private entities with at least 50 employees and all public entities, with the exception of organisational units of municipalities or counties with a population of less than 10 000.
Violations can be reported through three different channels. The first is an internal report, that is, the provision of information about the violation of the law in the framework of the procedure adopted by the employer. The second way is to report to an outside party, i.e. to pass the information on to the Ombudsman or other public authority. The third way is public disclosure, that is, providing information about the violation of the right to public information, e.g. through the media. This is possible in certain cases, for example when previous notifications have not had an effect.
What types of violations are reportable? The range of violations reported by whistleblowers includes: corruption, public procurement, financial services, anti-money laundering, product safety, environmental protection, public health, consumer protection and personal data protection.
Are there penalties for employers who do not comply? Yes — employers who fail to implement the required procedures or take retaliatory action against whistleblowers may be subject to a fine. In addition, disclosure of the identity of a whistleblower without his consent can result in a prison sentence of up to one year.
Criticism of the Act
Many similar whistleblower protection laws operate abroad, particularly in EU member states that were obliged to implement Directive 2019/1937. These laws apply in Germany, France and Spain, among others, although their introduction has often met with opposition from employers — for example, for fear of excessive bureaucracy.
In Poland, one of the most controversial aspects of the law was the exclusion of labor law from its scope. This means that the regulations do not cover violations related to labor law, such as harassment, mobbing or non-compliance with health and safety regulations. Although such irregularities are frequent, due to the shape of the law they cannot be reported by whistleblowers, which significantly limits their role and ability to report violations in the workplace.
As he emphasizes Monika Gładoch, PhD, Professor UKSW:
The protection of workers is devoted to the vastness of legislation, the significance of which is much greater than a single mention in a law loosely related to labor law. Indeed, the only thing that links the Whistleblower Protection Act with this branch of law is to guarantee special protection against retaliation to a person “who reports or publicly discloses information about a violation of the law obtained in a work-related context”.
Doubts arise, among others, about the manner of implementation of the provisions and the scope of protection provided for in Polish law. Does the Polish law comply with the EU directive? Some experts point to the lack of logic in its provisions — the division into internal and external reports loses its meaning at a time when, according to the directive, the employer should neither accept reports nor explain them. Meanwhile, the Polish law provides for the obligation of employers to directly engage in the process of accepting applications, which undermines the legitimacy of such a division. By the way, attention is drawn to ambiguities and inconsistencies in the provisions of the law, which may lead to difficulties in its practical application. Such gaps can result in different interpretations of the law and make whistleblower protection more difficult.
New Law and Practice
What is the situation in companies six months after the introduction of the law on the protection of whistleblowers?
Lawyers note numerous applications, but many of them combine issues of labor law and cases covered by the law, which raises interpretative doubts. The law does not cover violations related to mobbing, harassment or unequal treatment, although some employers qualify such cases for the whistleblowing procedure in the absence of other solutions. The removal of labor rights from the scope of the law is controversial — although companies have implemented reporting systems, there are not many reports, especially where anonymity has been waived due to concerns about abuse. The practice of whistleblower protection continues to take shape, and courts approach cases with caution. Employers remain in a stronger position and PIP monitoring could strengthen whistleblower protection.
summary
While the Whistleblower Protection Act was intended to provide greater transparency and safety for whistleblowers, its practical operation is controversial. The exclusion of labour law from the scope of the Act and the obligation of employers to accept reports directly are particularly problematic, which may undermine the effectiveness of whistleblower protection.
Sources: 1. https://www.prawo.pl/kadry/sygnalisci-w-firmach-jakie-naruszenia-zglaszaja,532025.html
2. https://www.gov.pl/web/rodzina/sygnalisci-w-pytaniach-i-odpowiedziach
3. https://uokik.gov.pl/bip/sygnalisci-zewnetrzni
5. https://www.tgc.eu/publikacje/kontrowersje-wokol-ustawy-o-ochronie-sygnalistow/
