On 12 April, on the website of the Government Legislation Centre, the second version of the bill on the protection of people reporting infringements of the law, implementing the EU Directive on the Protection of Whistleblowers, was published. The bill takes into account some of the concerns raised during public consultations. In addition to putting in order the solutions presented so far, the bill also introduces several changes. Below we present the most important of them.

According to the second version of the bill:

• The list of entities obliged to implement internal reporting procedures has been expanded. The previous version of the bill referred to “employers with at least 50 employees“, and now it refers to “legal entities for which work is performed by at least 50 people“. Therefore, it would appear that this threshold now includes people performing work on the basis of civil law contracts.
• Among others, temporary workers have been added to the list of people reporting or publicly disclosing information about a breach of the law.
• The catalogue of retaliatory actions has been extended and now includes, among other things, mobbing and discrimination. In addition, the bill provides that even attempts or threats to take such actions may be considered as retaliatory actions against whistleblowers.
• The amount of compensation that may be claimed by a person who has suffered damage as a result of the deliberate reporting or public disclosure of false information has increased from an amount not lower than the statutory minimum monthly wage to an amount at least equal to the average monthly wage in the business sector in force on the date of reporting or public disclosure.
• Consultations with the company trade union organization or representatives of people providing work for a legal entity are to last at least seven days but no longer than 14 days from the date of submission by the legal entity of the draft internal procedure.
• The prohibited acts indicated in the bill remain unchanged, but the sanctions have been eased. Previously, failure to implement a reporting procedure was punishable by up to three years of imprisonment, but this has now been changed to a fine.
• In the new bill it is pointed out that the ways of making a report include at least the possibility of doing so orally, in paper or in electronic form. It is specified that oral submissions can be made by means of a recorded or unrecorded telephone line or other voice communication system, as well as by means of a face-to-face meeting. The way of documenting such reports is also specified in the new bill.
• The period of data storage in the register has been reduced from five years counted from the date of acceptance of the report to 12 months counted from the date of completion of the follow-up actions.
• Importantly, the vacatio legis has been extended from 14 days to two months, which means that:
  • private entities hiring between 50 and 249 people will have until 17 December 2023 to establish internal procedures for receiving reports and taking follow-up actions.
  • private entities hiring more than 250 people will have one month from the entry into force of the new law to fulfill this obligation, i.e. in practice they will have three months to do so.

This second bill, like the first one, raises a number of doubts. There is still uncertainty as to how to determine the number of hired persons on whom the obligation to establish an internal reporting procedure depends. Nevertheless, an extended vacatio legis is certainly a positive element, allowing employers enough time to implement appropriate procedures.

Taking into account the scale of changes introduced in the new bill, it is difficult to say in what final shape the proposed regulations will come into force. At the moment, it is also not known when the bill will be submitted to parliament. We are constantly monitoring the situation and will keep you informed about any developments.

 

Michal Synowiec, Counsel

Agnieszka Tarasiuk, Paralegal