2018-02-05
Compliance and protection of whistleblowers

On 8 January 2018 the latest version of the draft of the Act on Transparency of Public Affairs was published. The bill introduces provisions on protection of whistleblowers and obligations in terms of implementation of compliance procedures, which will be applicable to all medium and larger business entities regardless of the type of industry or business.

Whistleblower

Any employee, public official, soldier, self-employed individual or individual hired under non-employment contract can receive the status of a whistleblower. The decision is in hands of a prosecutor if credible information is disclosed by the individual, concerning  specific crimes such as bribery, organized crime, forgery of invoices, fraud, credit scams, securities fraud, money laundering, corruption related to production and sales of drugs and medicines and others.

Protection of whistleblower

Once the whistleblower status is granted, the employer will not be able to dismiss a whistleblower employee without the consent of the prosecutor running the case. The same rule apply to non-employees whistleblowers.

The bill also provides for an obligation to obtain the prosecutor’s consent to unilaterally change the conditions of contracts to the detriment of whistleblowers.

The prosecutor should decide whether to consent to a whistleblower’s dismissal within 30 days from receiving motion in this regard.

The protection extends during the entire period of the criminal proceedings, as well as one year after termination of the proceedings. So in practice the period of protection may last for several years.

Damages

In event that whistleblower’s contract were terminated or changed without the consent of prosecutor, the whistleblower would be entitled to damages. Depend on the type of contract held by the whistleblower and the damages can amount to (i) twice the annual salary of a whistleblower employee or (ii) the total amount payable to a non-employee whistleblower pursuant to the parties’ contract from the date of termination of the contract through the end of the stated term of the contract.

Absolute protection

The protection afforded by the bill to whistleblowers would in practice be broader than any other type of protection afforded by the labor law, even comparing to protection of pregnant employees or employees at pre-retirement age. Moreover, the protection is not canceled by commencement of liquidation of the employer or declaration of its insolvency aimed at liquidation.

Ethics and anticorruption polices / compliance

Moreover,  it is important to point out that every medium and larger business entities regardless of the type of industry or business should introduce internal anticorruption policy and procedures in their organization. Anticorruption procedures should consist of organizational and technical measures and HR solutions. What is significant, anticorruption procedure should be applied in a way which guarantees its effectiveness and enforcement. Thus, this internal act should prevent from arising anticorruption mechanisms in organization and provide anticorruption trainings. It is also necessary to apply the code of anticorruption with declaration rejecting corruption signed by employees and business partners. Anticorruption clause shall be included in contract terms. Your anticorruption procedures to prevent bribery must include gift and hospitality provisions. When  assessing the condition of effectiveness and enforcement of anticorruption procedure it is curtail to validate whistleblowing system.

In case of corruption event occurs, and prosecutor has charged allegations, Polish Central Anti-Corruption Bureau will be empowered to investigate whether anticorruption procedure were implemented in effective manner. After the investigation Polish Central Anti-Corruption Bureau Chef may prepare a motion for fine up to 10 000 000 PLN, addressed to Office of Competition and Consumer Protection.  Business entity may pay fine before the decision is issued by Office of Competition and Consumer Protection. Entrepreneur which was fined by Office of Competition and Consumer Protection may not take part in procedure regarding the award of public procurement for a period of five years.

Wierzbowski Eversheds Sutherland may assist with preparation of anticorruption policies and procedures. We also help our clients in the process of implementation of effective whistleblowing systems in cooperation with E-nform – specialized IT solutions provider.  



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We discuss the current labour law, legal judgments and interpretations issued
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