HR in the Know 11/2024

IS THE WHISTLEBLOWER A SPECIALLY PROTECTED EMPLOYEE?

The word “whistleblower” has been widely discussed by various authors and commentators for some time now. Although for a more sensitive consumer of legal content, the saturation of the topic may already be distinctly noticeable, the entry into force of the Whistleblower Protection Act on 25 September 2024 (Journal of Laws from 2024 item 928) ("the Act") for many organisations means increased activity in the final stretch of implementing the appropriate internal procedures. Nonetheless, controversies and doubts remain.

It is worth focusing particularly on the relationship between the amendment to the Code of Civil Procedure (which came into force in September 2023) and the procedural status of the whistleblower in any potential litigation with (former) employers. Can a whistleblower count on protection in the form of imposing on the employer the obligation to continue their employment until the final resolution of the proceedings in a lawsuit where they will seek the recognition of the termination of the employment relationship as ineffective or their reinstatement to work?

Increased protection for all employees

From 22 September 2023, the court, in any case related to employment law, recognising the termination of an employment contract as ineffective or reinstating an employee to work, on the employee’s request, obligatorily imposes on the employer in the judgment the obligation to continue the employee’s employment until the final conclusion of the proceedings. Before the amendment, the court did not have this obligation but just a possibility, and thus the discretion to refuse to impose the obligation to continue the employment despite the employee’s request. In this case, the legislator has granted an additional protection tool to employees winning (appealable) their case without any subjective limitations. Thus, the entry into force of the Act will not bring any change in this regard. Both the employee-whistleblower and the employee who is not a whistleblower have the right to submit an application to oblige the employer to continue their employment until the final conclusion of the proceedings to be included in the judgment, and this application, if the court finds the employee’s case justified, is binding for the court.

Additional security for employees subject to special protection

Under the same amendment of the civil procedure, the court, in a case where an employee seeking recognition of the termination of an employment relationship as ineffective or reinstatement to work submits an appropriate application, is obliged to provide protection by temporarily reinstating the employee subject to special protection whose employment contract has been terminated. To obtain the protection, besides submitting an application, the eligible employee only needs to make the existence of the claim plausible, and the court may only refuse to grant it if it is evidently without merit. The introduced regulation thus allows the employee to obtain lasting security from the beginning of the process, lasting until the final conclusion of the proceedings, which can often encompass both instances and extend for a year, two years, or even longer. Of course, if the employment contract was for a fixed term and this period expires during the process, the contract will not be extended due to the grant of the protection, and the employer is not obliged to offer the employee a new contract until the end of the process.

Who can count on such ‘titanium’ security?

The list of specially protected employees is long and includes, among others, pregnant employees, pre-retirement age employees, trade union activists, and other members of employee representation bodies (e.g., works councils, European works councils), employees on parental or annual leave, or on sick leave. However, the whistleblower is not on this list.

What can the employer do?

In the case of a dispute with an employee subject to special protection, it will be extremely difficult for employers who wish to avoid the obligation to continue employment to achieve this goal. They only have at their disposal an appeal regarding the security, which is reviewed by the second instance court, or proving that after the grant of the protection, the grounds mentioned in Article 52 § 1 of the Labour Code have occurred. In the first case, the appeal effectively requires proving the evident lack of merit of the lawsuit, as the post-amendment provisions only allow the court to refuse to grant protection to the employee in such a case. This constitutes an exceptionally strong tool in a dispute with the employer

Is the whistleblower a specially protected employee?

Although the issue emerged during a meeting of the Social Policy and Family Committee in May this year, this issue was raised and a demand was expressed to explicitly provide in the Act that a whistleblower is not a specially protected employee within the meaning of Article 755(5) of the Civil Procedure Code, this was not included. It was formally correctly pointed out  that there should be no doubts as to whether the whistleblower is a 'specially protected' employee (they are not), and the Act provides them with protection against retaliatory measures that could be taken as a result of making a report, not general protection for the permanence of employment. In other words, the Act does not introduce any new limitation for the employer in terms of terminating an employment relationship not related to the whistleblower’s report. This means that obtaining whistleblower status does not protect such a person from termination of an employment contract, whether with or without notice, for objectively justified reasons. Even if an employee-whistleblower filed a protection application based on Article 755(5) of the Civil Procedure Code, the court, after determining that this employee does not belong to the category of employees subject to special protection, will not grant the protection. Unfortunately, while the above topic theoretically may not raise significant controversies, in practice, it can be expected that employees-whistleblower seeking their rights in court will readily try to use the “titanium” security even in matters unrelated to their status.

Will employees-whistleblower benefit from last year’s civil procedure amendments?

The aforementioned changes in the civil procedure have strengthened the employee’s position in legal proceedings against their (former) employer. According to the Act, no retaliatory measures or attempts or threats of such measures against a whistleblower are allowed. This prohibition includes, among others, the termination or dissolution without notice of an employment relationship caused by making a report or public disclosure and places the burden on the employer to prove that the action taken is not a retaliatory action. This may result in employees being more willing to invoke the protection provided by the Act. Furthermore, regardless of whether they are whistleblowers or not, they will still have the option, introduced in autumn last year, to demand continued employment until the final conclusion of the proceedings in a judgment recognising the termination of the employment contract as ineffective or reinstating the employee. It is also possible that employers will have to prepare for claims from employees who will look for retaliation in their personnel decisions due to reported irregularities and will willingly use the strengthened procedural position provided by last year’s civil procedure amendments, and accordingly prepare suitable organisational policies in advance.