Labour law updates and recommendations

Protection of whistleblowers still without guidelines

In the second half of October, the long-awaited bill on the protection of whistleblowers – more commonly known as the “whistleblower law” – was published. The new legislation aims to implement EU Directive 2019/1937 into the Polish legal system and the deadline for doing so is 17 December 2021.

With the deadline fast approaching, there are still some concerns regarding the bill, including in the area of labour law.

One of these relates to a whistleblower’s claims in the event of termination. According to Article 15(1) of the bill, a unilateral legal action involving the termination of a legal relationship (other than an employment relationship) because of a report or public disclosure is ineffective (i.e. has no legal effect). It is difficult to imagine that this was the legislator’s intention, but the result is that this puts whistleblower-contractors in a more advantageous position than whistleblower-employees, i.e. the whistleblower-contractor will be able to claim damages in the form of lost remuneration for the entire period during which the contract should have been in force; whereas, if we terminate an employment contract, the employee is entitled to the standard claims set out in the Labour Code, i.e. reinstatement to work and/or the remuneration for the period of being unemployed (for a maximum of three months). For the time being, there are no grounds for concluding that a whistleblower is a specially protected type of employee.

In addition to the above, there are also concerns about the very large group of individuals who are to be given protection under the whistleblower law, the allocation of the burden of proof in the event of a dispute between the employer and the employee, and the potential criminal liability of individuals representing the employer on the basis of Article 3 of the Labour Code (usually employees of the HR department).

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Hubert Hajduczenia, Senior Associate

Emilia Kalecka, Associate