The whistleblower in Poland. An overview of legal regulations.
Never ending story...
The whistleblower in Poland, is a difficult but necessary topic. As of the date of writing, only two countries in the European Union have not implemented the Directive on the protection of whistleblowers into their national legal orders. When did the deadline for its implementation expire? It expired on 17 December 2021, which is exactly 727 days ago. Exactly on Sunday, we will celebrate the second anniversary of this deadline.
Therefore, for obvious reasons, the subject of today's article will be Poland. As previous articles have shown, the implementation of the directive's requirements brings with it many challenges. Especially in a post-communist country such as Poland. Society, due to historical experience, often equates whistleblowing with snitching.
Whistleblowers in Poland so far
It cannot be said that Poland completely lacks solutions that make whistleblowing possible and also guarantee the protection of whistleblowers.
It is worth giving an example, for example, the provisions of the Banking Law. They indicate the need to have in the management system a procedure for anonymous reporting to a designated member of the management board (exceptionally the bank's supervisory board). They also cover violations of the law and the bank's procedures and ethical standards. In addition, the bank shall ensure that employees who report violations are protected at least against punitive actions, discrimination or other types of unfair treatment.
A similar solution also exists in aviation law, which allows for voluntary whistleblowing in civil aviation. At the same time, the whistleblower cannot be held liable by the employer. This applies to the breach, non-performance or improper performance of employee duties on the basis of a report. The regulations also cover persons employed under civil law contracts.
To date, several drafts of the Polish law have been published, the last one in August 2023. Over the course of successive drafts, the scope of the internal notification procedure, the public authority responsible for receiving external notifications (previously the Ombudsman and now the State Labour Inspectorate), data retention periods, liability issues and many other minor issues have been changed.
The latest drafts also introduced the institution of a whistleblower status certificate, which should be assessed rather negatively. In the case of an external notification, the whistleblower will be protected against retaliation after the issuance of the relevant certificate, which will prove the whistleblower's status. The certificate will be issued by the public authority with jurisdiction to follow up on the suspected violation of the law, no later than 30 days after receipt of the notification. In addition, the public authority will inform the legal entity for which the whistleblower provides work about the issuance of the above certificate.
At the same time, the certificate will be issued only upon receipt of a declaration from the notifier under the pain of liability for false testimony that the information on the violation of the law that is the subject of the notification was true at the time of notification.
As the whole series of publications and our experience show, building an effective and, more importantly, transparent whistleblowing system is a tedious and multifaceted process. However, doing your due diligence and getting the implementation process right, followed by the management of the whistleblowing system, not only builds a solid foundation for the organisation's operations, but also forms the basis for its future development. It is therefore worth monitoring the issue of the implementation of the Directive into our legal order now.