On 2 April 2024 the Polish government accepted a draft law on the protection of whistleblowers.
This is yet another attempt to implement Directive (EU) 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. Previous attempts had failed for more than two years. Earlier versions of the draft never even made it to the Sejm.
The draft law adopted by the government has expanded the catalogue of violations that can be reported under the whistleblower protection act to include, among others, labour law. In the justification of this amendment to the draft, one can read that this solution is backed by the fact that every year employees report many complaints to the State Labour Inspectorate. So why not do it under the whistleblower law?
On the surface, the change does not seem very significant. Many companies have, for example, introduced anti-bullying policies that provide for an internal procedure for reporting and dealing with complaints of bullying. Some companies, due to their corporate standards, have introduced internal grievance procedures. In fact, it is tempting to combine all these independent procedures into one.
The point is that this seemingly cosmetic change may entail far-reaching legal consequences, as the State Labour Inspectorate rightly raised in its comments on the draft.
Indeed, the term 'labour law' used in the draft law has its own statutory definition and it is very capacious. According to Article 9 § 1 of the Polish Labour Code, whenever labour law is referred to, it is understood to mean the provisions of:
if they define the rights and obligations of the parties to the employment relationship.
Intra-company labour legislation in practice regulates a variety of issues. They range from the most obvious, such as issues related to remuneration conditions (remuneration regulations), through so-called social packages, to such matters as fruit Thursdays. All of these regulations constitute 'labour law' within the meaning of the Labour Code.
The draft Whistleblower Protection Act, as currently drafted, does not differentiate between notifications in terms of the 'materiality' of the matter covered by the notification. Thus, from the perspective of the coverage of a report by the matter under the Act in question, a report concerning incidents of sexual harassment and an employer's failure to comply with its obligations regarding fruit Thursdays would have the same value. One and the other notifier would be covered by the protection against dismissal under the whistleblower protection act. It is impossible not to agree with the State Labour Inspectorate that such a solution may contribute to whistleblowing on non-substantive issues by employees at risk of dismissal just to obtain protection.
It seems that this was not the aim of the EU legislator when enacting the Whistleblower Directive. By the way – there is no reference to labour law violations in the text of the Directive.
The draft law is still in the early stages of work. It is therefore possible that the position of the Labour Inspectorate will be taken into account (e.g. by clarifying the labour law matter that may be reportable under the whistleblower protection act, alternatively, by introducing this area into internal regulations on a voluntary basis).
However, if ultimately the provisions of the Whistleblower Protection Act were to remain unchanged in this respect, an audit of internal HR documentation may be necessary when creating reporting procedures in order to identify potential risks and address them appropriately.