EU directive set to protect whistleblowers
17th of December 2021 is the due date under which Poland is obligated to implement Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (later on called the Directive). Based on such Directive, Polish legal entities will have 2 years to fulfil the requirements created by the legislators. In the case of private entities employing 50 to 249 people, the timeframe has been expanded until 17 December 2023.
Hitherto, the only regulation that raised the case of whistleblowers was the Anti-Money Laundering and Counter-Terrorism Financing Act of first of March 2018, which concerns only some entities: i.e. banks, investment firms or payment institutions. However, the list of entities included in the Directive is vastly longer and will cover legal bodies from both the private and public sector.
In practice, the Directive obliges the creation of internal channels for reporting breaches of law, and procedures concerning actions made by the recipient (called follow up occurrences). Additionally, the Directive obliges the creation of external channels directed linked to the state authorities. The Directive indicates that employees should be encouraged to firstly, use and report breaches of laws through the internal channels.
However, potential whistleblowers often give up reporting their reservations and suspicions because of the fear of retaliation. In 2019, Stefan Batory Foundation conducted an opinion poll regarding attitudes towards the support and protection of the whistleblowers. The poll results indicate that Poles anticipate negative reactions towards actions of a whistleblower. As such, there is a justified reason for punitive actions against people who would strike back due to the revealing of misconduct at the workplace[i].
Based on such approach, it is important, for the Directive, to create and implement special protections safeguarding whistleblowers from negative consequences, like demotion, suspension, or dismissal. The Directive also includes support for the whistleblowers (for example legal or psychological), protection of people who are subjects of a report, and sanctions against those who would hamper attempts of reporting, retaliate, or reveal the identity of a whistleblower.
It should be highlighted, that the protective measures are not given unconditionally. In order to be covered by them, there are requirements to fulfil. Most importantly, a whistleblower should have justified reasons to think that the reported actions have been authentic at the moment of making a report, and that they are contained in the Directive. Another condition is that the report should be made according to the correct procedure outlined in the Directive.
A whistleblower is entitled to receive feedback regarding actions or measures that have been in taken in response to his report. Such actions could be, i.e. redirecting the case to another department or terminating the procedure due to inadequate proof[ii]. The feedback should be delivered by a previously designated, impartial person in time not exceeding 3 months from the confirmation of receiving the report[iii].
So far, on the market, the first tools for anonymously reporting a misconduct, have surfaced. Deloitte Halo is one of them. Deloitte Halo is a safe, digital solution that allows reporting true to the regulations concerning the protection of personal data and the use of confidential channels. Our solution meets formal expectations and provides an easy, user-friendly platform to implement and use in regard to whistleblowing reports.
The protection of whistleblowers lies in the interest of everyone. The Directive is clear and an important indication for domestic legislators. However without proper implementation, it will be difficult for the Directive to meet its ultimate purpose.
i Gnębieni, podziwiani i... zasługujący na ochronę. Polacy o sygnalistach. Raport z badania opinii publicznej. G. Makowski, M. Waszak, Warszawa 2019, s. 2
ii Dyrektywa Parlamentu Europejskiego i Rady (UE) 2019/1937 z dnia 23 października 2019 r. w sprawie ochrony osób zgłaszających naruszenia prawa Unii, (66)
iii Ibidem, art. 9