Whistleblowing protection and rights guaranteed by law

At a glance

• Who is a whistleblower and what protection are they entitled to?
• Should a whistleblower act in good faith?
• What rights does a person who is the subject of a whistleblowing report have?
• What can a whistleblower who has been subjected to retaliatory measures claim?
• Can a whistleblower be dismissed?
• Can a whistleblower demand to be allowed to work pursuant under Article 755(5) of the Polish Labour Code which provides for security in the form of continued employment?
• When is a whistleblower who has made a public disclosure entitled to protection?
• When can external reports be submitted to state authorities?

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Who is a whistleblower and what protection are they entitled to?

A whistleblower is a natural person who reports or discloses to the public information about a violation of the law obtained in a work-related context. No retaliatory measures (ie measures aimed at worsening the whistleblower's work-related situation) may be taken against the whistleblower in connection with the report or disclosure.

'A whistleblower must have reasonable grounds to believe that the information reported or disclosed to the public is true at the time of reporting or disclosing and constitutes information about a violation of the law'  What does this requirement consist of? Should a whistleblower act in good faith?

A whistleblower should act in good faith, with a reasonable belief that the information provided was true at the time of reporting or disclosure and that it concerns a violation of the law. For the whistleblower to be protected, it is irrelevant whether the information ultimately proves to be true or whether they correctly classified the behaviour in question. It is crucial that, at the time of reporting, the whistleblower had reasonable grounds to believe that the report or disclosure was true. It is not required that the whistleblower act in public interest or that the report be necessary to reveal a violation of the law.   Reports made without reasonable grounds are not covered by legal protection.

What rights does a person who is the subject of a whistleblowing report have?

A person who is the subject of a report or disclosure and who suffers damage because  a whistleblower knowingly provides false information has the right to claim compensation or damages from the whistleblower for a violation of personal rights.

What can a whistleblower who has been subjected to retaliatory measures claim?

A whistleblower who has been subjected to retaliatory measures has the right to claim compensation equal to at least the average monthly salary in the national economy for the previous year, as announced in Monitor Polski by the President of the Central Statistical Office (in 2024 it was PLN 7,140.52), or compensation for non-material damage.

In addition, depending on the nature of the retaliatory measures taken, the whistleblower may demand that rectification of the measure taken. For example, if the employer terminates the whistleblower's employment contract, they may seek reinstatement, indicating that the reason for the termination was submitting a whistleblowing report. In this situation, the employer must prove in court that the termination was not related to the whistleblower's report.

Can a whistleblower be dismissed?

Yes, a whistleblower's employment contract may be terminated with or without notice. However, the termination must not be related to the whistleblower's report/disclosure. In the event of legal proceedings, the employer is responsible for proving in court that the termination was not related to the report/disclosure.

Can a whistleblower demand to be allowed to work pursuant under Article 755(5) of the Polish Labour Code which provides for security in the form of continued employment?

Pursuant to this provision, if an employee who enjoys special protection against termination is served with a termination notice, they can appeal to a labour court which can order the continuation of their employment for the duration of the proceedings.

The issue of whether a whistleblower enjoys special protection against termination has not yet been resolved in practice and there are currently no specific rules in this regard. However, it is worth noting that during consultation and expert meetings, representatives of the labour ministry emphasised that Article 755(5) of the Labour Code should apply to whistleblowers.

However, in our opinion, whistleblowers are not 'specially protected' employees and should not receive protection under this provision. The status of being a whistleblower does not in itself protect a person against termination. It only means that the person is protected against retaliation for making a report/disclosure. An employee is not protected from termination simply because they are a whistleblower.

When is a whistleblower who has made a public disclosure entitled to protection?

A whistleblower who makes a public disclosure is entitled to protection if certain conditions are met. First, the whistleblower is protected when they make an internal report followed by an external report, and the relevant entities fail to act or provide feedback by the specified deadline (unless the whistleblower has not provided contact details). Protection is also granted if the whistleblower immediately reports the matter externally and the public authority fails to respond by the specified deadline (unless the whistleblower has not provided contact details).

In addition, a whistleblower is protected if they have reasonable grounds to believe that the violation of the law may constitute a direct or obvious threat to public interest, especially when there is a risk of irreversible damage.

Protection is also granted if making an external report would expose the whistleblower to retaliation or if there is little likelihood of effective action being taken to rectify the violation due to the specific circumstances of the case, such as the possibility of evidence being concealed or destroyed, collusion between the public authority and the perpetrator of the violation, or the involvement of a public authority in the violation.

When can external reports be submitted to state authorities?

The provisions on external reporting entered into force on 25 December 2024 so then, whistleblowers are now able to submit external reports. This date also marked the deadline for updating existing internal policies to include clear and easily accessible information on how to make external reports to state authorities, as well as institutions, bodies or organisational units of the European Union.