Sanctions for failure to implement a whistleblowing procedure

At a glance

• What penalties can be imposed for failure to implement an internal whistleblowing policy?
• What is the procedure for adjudicating cases of failure to implement an internal whistleblowing policy or establishing a policy in breach of statutory requirements?
• Is it possible to punish a legal entity more than once for failing to implement an internal whistleblowing policy or establishing a policy in breach of statutory requirements?
• Which authority verifies whether an internal whistleblowing procedure has been implemented correctly?

What penalties can be imposed for failure to implement an internal whistleblowing policy?

Pursuant to Article 58 of the Act on the Protection of Whistleblowers, anyone who is responsible for establishing an internal whistleblowing procedure but fails to do so or establishes it with a significant breach of the requirements arising from the Act, will be subject to a fine. This failure/breach is individual in nature and constitutes a misdemeanor, not a crime. It can only be committed by the person responsible for establishing an internal whistleblowing procedure, ie most often a member of the management body of a given legal entity (in most cases, this will be the management board).

An offence under Article 58 of the Act on the Protection of Whistleblowers is punishable by a fine of between PLN 20 and PLN 5,000. The offence is subject to punishment for one year after it has been committed, and if proceedings regarding the offence have been initiated before a court during that time, three years after it has been committed.

What is the procedure for adjudicating cases of failure to implement an internal whistleblowing policy or establishing a policy in breach of statutory requirements?

In these situations, pursuant to Article 59 of the Act on the Protection of Whistleblowers, the ruling is made in accordance with the provisions of the Act of 24 August 2001 - the Code of Procedure in Misdemeanor Cases. This means that the violation is classified as a misdemeanor, which affects the scope of possible penalties. The fine may range from PLN 20 to PLN 5,000. In this case, the provisions of the Criminal Code do not apply.

Is it possible to punish a legal entity more than once for failing to implement an internal whistleblowing policy or establishing a policy in breach of statutory requirements?

Pursuant to Article 58 of the Act on the Protection of Whistleblowers, a legal entity failing to establish a policy or establishing it incorrectly (ie failing to create appropriate protection mechanisms for whistleblowers) can constitute committing a prohibited act. The term 'establish' for the purposes of this provision should be understood exclusively as the creation of a procedure, and not its application. In view of the above, it is assumed that failure to implement an internal whistleblowing procedure can only be punished once. The Act on the Protection of Whistleblowers stipulates a date by which legal entities are required to adopt and announce their procedure. An offence is committed when this deadline expires, and the required procedure has not been established.

Once the person responsible for establishing the procedure has been punished, even if the procedure has still not been implemented, punishing the same person again for the failure to implement it would be contrary to the principle of double jeopardy (ie a person cannot be punished twice for the same act).

Which authority verifies whether an internal whistleblowing procedure has been implemented correctly?

According to legal scholars and practitioners, in the absence of an authority empowered to conduct investigations and exercise the powers of a public prosecutor, this right is vested in the police under Article 17 § 1 of the Code of Procedure in Misdemeanor Cases. The State Labour Inspectorate (PIP) does not have such powers, as its powers in misdemeanor cases are detailed in Article 17 § 2 of the Code of Procedure in Misdemeanor Cases and in the Act on the State Labour Inspectorate. Therefore, punishment by a PIP officer, either by issuing a fine or by filing a motion for punishment for a misdemeanor, constitutes an action contrary to the Code of Procedure in Misdemeanor Cases and should result in the discontinuation of the proceedings on the grounds of their having been initiated by an unauthorised person, pursuant to Article 5 § 1 point 9 of the Code of Procedure in Misdemeanor Cases.