Key Information on Whistleblower Protection

The Whistleblower Protection Act of 14 June 2024 (Journal of Laws, item 928) specifies in particular:

• definitions, among others, of ‘public authority’, ‘legal entity’ (which is obliged to establish reporting channels), ‘follow-up actions’ and ‘retaliation’;
• the material scope of the breaches of law to be covered by reporting.

The provisions protecting a whistleblower apply to the breaches of law specified in Directive 2019/1937 and to all breaches of law in the corresponding areas of national law (e.g. public procurement, transport safety, and environmental protection).

In addition, the material scope of the Act was extended to include:

1. constitutional rights and freedoms of persons and citizens (but only those which exist in relations between an individual and public authorities and are not related to other areas indicated in the act);
2. corruption.

• The legal status of whistleblowers

Whistleblowers are protected regardless of the form of work or service (such as a contract of employment, a civil law contract, carrying out economic activity, voluntary service or military service).

The protection is also extended to whistleblowers who report or make public disclosures before entering into an employment relationship or another legal relationship under which work is to be performed, or after such a relationship has ended.

The Act also provides protection for:

1. persons who report or publicly disclose information on a breach acquired in the context of their work-related activities;
2. facilitators;
3. persons connected with the whistleblower;
4. legal entities or other organisational units who are facilitators or are connected with the whistleblower (in particular those owned by or employing a whistleblower).

• Conditions of protection for whistleblowers

The status of whistleblower is a consequence of internal reporting, external reporting or public disclosure.

In addition, the whistleblower should have reasonable grounds to believe that the information which is reported or publicly disclosed is accurate at the time of reporting or public disclosure and that it constitutes information about a breach of law (within the meaning of the Act).

The protection applies starting from the moment of reporting or public disclosure.

• Reporting breaches of law through internal channels

Legal entities for which at least 50 persons work or provide work as at 1 January or 1 July of the year in question are obliged to establish internal reporting and follow-up procedures.

This does not apply to entities operating in the financial sector (e.g. banks, investment funds) which are required to establish reporting channels in any circumstances.

Municipalities or districts with populations of fewer than 10 000 inhabitants are exempt from the above obligation.

• Reporting breaches of law through external channels

An obligation to establish an external reporting procedure has been imposed on public authorities, as has the obligation to issue certification confirming that the whistleblower qualifies for protection provided for in the Act, if the whistleblower requests such certification.

The public authority will also:

1. receive a report;
2. transmit it to a competent authority when the report does not fall within its competence;
3. examine reports falling within its competence;
4. take follow-up actions;
5. provide feedback to the reporting person.

Additionally, the public authority will be required to keep records of external reports and prepare annual aggregated reports containing data on external reports.

• Tasks of the Commissioner for Human Rights

The role of the Commissioner for Human Rights is to receive external reports, including to carry out the initial review of the report and to take the case further by referring the report to the public authority competent to take follow-up actions or – in the field of constitutional rights and freedoms of persons and citizens – to handle the report and take follow-up actions.

In addition, the Commissioner for Human Rights provides whistleblowers with support measures (e.g. advice on rights and legal remedies).

The Commissioner for Human Rights is also obliged to prepare an annual aggregated report on external reports (based on aggregated reports submitted by public authorities) and submit it to the European Commission, the Sejm and the Senate.

• Rules of public disclosure

Such disclosure is covered by statutory protection when the disclosing person first makes a report internally and externally, or immediately reports externally, but no appropriate action is taken in response to the report within the deadline set.

• Whistleblower protection measures include:

1. a prohibition on retaliation (e.g. a prohibition on terminating an employment relationship);
2. reversed burden of proof (the burden of proving that the action taken is not retaliatory lies with the retaliator);
3. compensation for retaliation;
4. a prohibition on renouncing protection granted under the proposed act;
5. sanctions.

The Act enters into force three (3) months after its publication. In contrast, the provisions on external reports enter into force six (6) months after publication.