HR in the Know 15/2024
On 25 December 2024, the provisions of the Act of 14 June 2024 on the Protection of Whistleblowers (the "Act") concerning external reports will come into effect. This means that from that date onwards, the Act will be fully in force.
At first glance, it may seem that the entry into force of the aforementioned provisions will not impact private entities. However, the opposite is true. First and foremost, from 25 December 2024, whistleblowers will have an additional reporting channel they can use without previously making an internal report. Therefore, it will be crucial to ensure the existence of effective reporting channels within the organisation to minimise the risk of whistleblowers resorting to the new path, which may often be undesirable. Furthermore, the entry into force of the new provisions triggers the obligation to update internal reporting procedures (the "Procedure") with information regarding external reports (if such information has not been previously included).
We informed you about the various stages of the works on the Act and its entry into force in previous editions of HR in the Know (2/2024, 4/2024, 7/2024, 8/2024, 9/2024 and 10/2024).
New reporting channels
Starting from 25 December 2024, potential whistleblowers will be able to make external reports to the Ombudsman or a public authority. This will introduce a third reporting channel for them (in addition to internal reports and public disclosures). While the possibility of making an external report by a whistleblower can be viewed positively, it may not be desirable for private entities. This expansion introduces various risks, beginning with possible negative legal consequences if a public authority finds that a breach of law has indeed occurred within a company, and extending to potential reputational damage if undesirable information about irregularities leaks to the public. In many cases, it is possible to effectively address legal breaches within a legal entity's organisational structure without involving public authorities.
Entities most exposed to the above-mentioned risks associated with external reporting are those that, despite being obliged, have not yet implemented the Procedure yet. In the absence thereof, individuals engaged by these entities will not have the option to use the path within the organisation, and therefore. their only available options will be external reporting (after 25 December 2024) and/or public disclosure (which is permissible only in strictly defined situations). In order to minimise these risks, it is crucial to promptly implement the Procedure, irrespective of the deadlines suggested by the unofficial position of the Ministry of Family, Labour and Social Policy.
Additionally, in order to encourage whistleblowers to use internal channels rather than external ones, the Procedure should be designed to facilitate the use of internal organisational pathways and enable entities to respond effectively to detected breaches. The Act also permits the establishment of an incentive system within the Procedure to encourage potential whistleblowers to use it, although admittedly, this solution has not been very popular in the Polish market to date.
It should be noted, however, that regardless of the above, a whistleblower is not obliged to use the internal channel offered by the legal entity first and may report their concerns directly to the appropriate state authorities.
Information on making external reports
The second issue to consider in connection with the entry into force of regulations concerning external reports is the obligation, starting from 25 December 2024, to include in the Procedure understandable and easily accessible information on making external reports to the Ombudsman or public authorities, and, where applicable, to the institutions, bodies, or organisational units of the European Union. Therefore, when establishing the Procedure, private entities should ensure that it is included. Entities that have already implemented the Procedure should verify whether it contains the appropriate information mentioned above, and, if not, update the Procedure accordingly.
