The Whistleblower Act was announced in the Journal of Laws on June 24, 2024. From that moment, a countdown has started for entities specified in the Act (including legal entities employing at least 50 persons) to adjust to the new regulations.
The Whistleblower Act will come into effect on September 25, 2024 (with certain exceptions). However, the entities designated by the legislator must undertake certain actions much earlier so that by September 25, 2024, they are fully prepared to receive reports from whistleblowers. It is essential that when preparing a timeline of activities, not only the legislator-specified time for the implementation of the internal reporting procedure is considered, but also the time needed for preparatory actions, including consultations with trade unions or representatives of persons rendering work, and for the possible selection of such representatives.
How much time is there for implementation of the internal reporting procedure?
The majority of provisions of the Whistleblower Act will enter into force on September 25, 2024 (except for, among others, the provisions on external reporting, which will take effect six months after the announcement date).
Below, we present a timeline of activities:
It is vital to note that in Accordance with the Whistleblower Act, a mere failure to introduce an internal reporting procedure in the organisation or its introduction in breach thereof is subject to a fine that may be imposed on persons responsible for implementation of the internal reporting procedure.
What entities will be required to have an internal reporting procedure?
Legal entities required to have an internal reporting procedure can be divided into two groups.
The first group includes legal entities that employ at least 50 persons as of January 1 or July 1 of any given year. The introduction of this procedure is mandatory in such organizations.
The number of 50 persons performing gainful work for a legal entity includes employees (with working time translated to full-time equivalents) or persons performing work for remuneration on a basis other than the employment relationship, if they do not employ other persons for this type of work, regardless of the basis of employment.
Example (1)
Example (2)
A legal entity employs 35 persons under employment contracts, 10 persons under mandate contracts, and 15 persons under B2B contracts. According to the Whistleblowers Act, this legal entity is required to introduce an internal reporting procedure.
A legal entity employs 56 persons under employment contracts, but when translated into a full-time equivalent basis, it amounts to 40 FTEs. Additionally, it employs 7 persons under mandate contracts. According to the Whistleblower Act, this legal entity is not required to introduce an internal reporting procedure (unless this obligation arises from other specific regulations and is not dictated by the nature of the activities conducted).
The obligation to introduce an internal reporting procedure, regardless of the number of employees, also applies to all legal entities carrying out activities in the fields of financial services, products, and markets, as well as anti-money laundering and terrorism financing, transport security and environmental protection (covered under the scope of European Union legal acts listed in parts I.B and II of the annex to Directive 2019/1937). The above constitute the second group of entities required to have an internal reporting procedure.
Legal entities not engaged in the aforementioned sectors and employing fewer than 50 persons are not required to establish internal reporting procedures or, consequently, accept and consider whistleblower reports. However, it should be emphasised that they may optionally do so.
Every legal entity not legally required to have in olace an internal reporting procedure, should consider its voluntary implementation. It seem a good solution for a legal entity to ensure potential irregularities are reported within the organization rather than through external notification.
What are the new obligations imposed on employers under the whistleblower protection regulations?
Each organization covered by the act will be subject to a number of new obligations.
Are organizations permitted to have a common whistleblowing procedure within a capital group?
The Act permits an introduction of a common internal reporting procedure for private entities belonging to a capital group. However, such a group procedure must comply with Polish regulations.
In practice, this means that the whistleblowing procedures adopted within the group will have to be verified in terms of their compliance with Polish law.
KPMG Law’s support in whistleblowing-related matters
KPMG Law offers comprehensive support in the process of preparation and implementation of an internal procedure relating to the protection of whistleblowers, conduct of investigations and other activities required by the Whistleblower Protection Act.
