by Piotr Brych, Junior lawyer
So far, the uniform regulation regarding the problem of “whistleblowing” has not been adopted in Poland. “Whistleblowing” is a phenomenon which has been defined in the countries of Anglo-Saxon law. It means the disclosure by a member of the organization (former or current) of illegal, immoral or unlawful practices carried out with the knowledge of the employer, by informing people or organizations that are able to take effective action to stop these practices. As the result of measures taken, the public interest is protected, but often also the interests of the employers themselves. According to the source material, anonymous informants and internal whistleblowing systems is one of the three most effective tools for detecting fraud.
In the United States, the first act of the framework protection of individuals engaged in unmasking corruption in corporations or public institutions was passed in 1978. Today, the Sarbanes-Oxley Act of 2002 regulates this problem comprehensively. In Poland, there is no equivalent of the American Law, although in 2012, at the initiative of the Stefan Batory Foundation a document – “Assumptions to the Act on the Protection of Whistleblowers in a Professional Environment” was developed which is the first step towards the introduction of a comprehensive regulation.
Residual regulations related to the problem of “whistleblowers” are included in the Labour Code and in the Code of Criminal Procedure. The primary Staff responsibility pursuant to the Labour Code is among others the concern for the welfare of the employer, which can also mean efforts for fraud detection. Whereas, pursuant to the Code of Criminal Procedure everyone has a social obligation to notify law enforcement authorities on suspicion of committing a crime. This standard, however, in practice, has only a moral significance.
It is hard to find in the Polish law the institutions that would protect the person reporting the irregularities against retaliation on the part of employer, including the ones protecting his/her identity, but in this matter there is also some partial legislation. As such one can certainly consider an institution of reasons to terminate the contract of employment. The existence and veracity of the reason is the precondition for the effective termination of employment contract and subject to labour courts examination, in case of recalling employee from the termination of employment contract. In criminal proceedings, there is an institution called anonymous witness, but it is applicable only in exceptional cases, when life, health or property is threatened in substantial nature. In the provisions on the National Labour Inspectorate, there is an obligation not to disclose information about the person who reported the complaint to the Inspectorate, without expressed written consent. However, the opportunity to reveal the identity of the employee, including his personal data, is left to the discretion of the labour inspector.
The existing law on the protection of personal data also does not ensure keeping the identity of whistleblowers confidential, even within the corporate internal procedures, and that as a result of provisions which impose on the data controller the obligation to inform about the person reporting the abuse, if an indicated person requests it (art. 25 of the Act). In 2010 the Inspector General for Personal Data Protection already drew attention to this problem. Thus, the person reporting the irregularity must reckon with the hostile reaction of person committing abuse as well as with the stigmatization by the environment.
The current regulation of the “whistleblowing” issue in Poland is insufficient to provide full legal protection. The legislation does not systemically protect a whistleblower against disclosure of identity, and clearly does not protect against the loss of jobs or conditions of existing work. Also more advanced solutions provided in other countries, including United States, as the prohibition of using so-called “gagging clauses” or financial incentives to report irregularities, obviously do not exist.
Special acts for the protection of whistleblowers have been adopted not only by the countries of Anglo-Saxon tradition, but also by Japan, South Korea or Hungary, Romania and Slovenia. In Poland, despite the initiatives undertaken by non-governmental organizations, the prospects for the creation of similar legislation in the near future are rather vague. Solving the problem of “whistleblowing” disappeared from the agenda of the government and does not appear in the “Government’s Anti-corruption Program for the Years 2014-2019″.