A new draft of the Act on Whistleblowers has appeared. What changes are included?

What exactly are the changes introduced by the new draft legislation?

Let us remind you that the Directive (EU) 2019/1937 of the European Parliament and the Council on the protection of Whistleblowers was to be implemented by all EU Member States by December 17, 2021. Unfortunately, legislative work at government levels in most countries is still ongoing. Currently, another version of the draft Act on Whistleblowers has appeared in Poland, which contains new proposals for changes. Below we discuss the 5 most important ones.

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• External reports are to be handled without the participation of the Ombudsman. This is one of the major changes that has been included in the latest draft of the Whistleblower Protection Act. Initially, it was to the Ombudsman that external reports were to be submitted, but now its role has been completely limited, and the receipt and processing of notifications have been redirected to public authorities, including the National Labor Inspectorate. It is to be responsible for the initial stage of verification of reports, and then forward them to the competent public authority, whose task is to take remedial action.
• The NCI's task is also to receive reports on incoming external notifications from other public authorities. Then, he will be able to create reports for a given calendar year and then submit them to the European Commission. Redirecting the receipt and managing of notifications from the Ombudsman to the National Labor Inspectorate will force an amendment to the Act on the National Labor Inspectorate.
• The Police and the Prosecutor's Office were indicated as the entities competent to receive reports from external Whistleblowers. The Prosecutor is to be responsible for handling notifications that relate to offenses affecting the interests of the European Union. In turn, the Police are to deal with external reports bearing the features of crime.
• Changes have been made to the penal provisions. In the event of difficulties in submitting a notification, the draft provides for more severe sanctions by inserting a penalty of imprisonment. On the other hand, in the case of knowing that a violation has not taken place and making a report or public disclosure, the penalty of imprisonment has been reduced from 3 to 2 years.
• The period for storing personal data in the report log is set at 15 months after the end of the calendar year in which the follow-up was completed or after the completion of the proceedings initiated by the follow-up.
• The Whistleblower also can receive a certificate of being a person reporting irregularities, which is also to confirm protection under the legal provisions contained in the Act.
• In the case of inaccuracies or issues that have not been regulated by law, the new draft suggests a reference to the provisions of the Code of Administrative Procedure.

To sum up, at the moment legislative work at the government level is still in progress. The planned date of adoption of the draft by the Council of Ministers has been set for the first quarter of 2023. It is worth noting that the issues related to internal reporting have not changed much and employers still need to provide their employees with an internal channel for handling notifications, which may be compliant with the requirements of the directive and a secure Whistleblower system.

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