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Although, according to recent media reports, the draft Act on Transparency of Public Life is still being prepared, the institution of the whistleblower, regulated in the draft, is gaining importance. The Office of Competition and Consumer Protection has implemented a special programme aimed at protecting whistleblowers and spreading knowledge about their rights.
A whistleblower, also called an exposer, is a person who informs the public, including the relevant state authorities, about detected irregularities and unethical, dishonest activities in the workplace.
The term “whistleblower” was first used in its present positive sense in the 1970s, although the term dates back to the nineteenth century. Protection of whistleblowers is undoubtedly new in Poland, but in English-speaking countries, including the United Kingdom, the United States, New Zealand, Australia and Canada, the institution has long been established. These countries usually have special government units to protect whistleblowers and lobby on their behalf.
Until now, people reporting workplace irregularities have not been protected in any way. The Act on Transparency of Public Life was intended to bring about an important change and also contains an unambiguous definition of a whistleblower. The act has not yet entered into force, but its definition may be used as an aid.
Definition of a whistleblower – Article 2(1)(15) of the draft Act on Transparency of Public Life
“(…) a natural person or entrepreneur whose cooperation with the justice system, consisting in reporting information about the possibility of a crime being committed by an entity with which they are connected by an employment contract, service relationship or other contractual relationship, may adversely affect their personal, professional and financial situation, and to whom a prosecutor has granted whistleblower status.”
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The draft Act on the Protection of Public Life also contains a separate chapter devoted to the rules and measures required to protect whistleblowers. Under its provisions, not every whistleblower will be protected: to use the statutory measures, a person reporting irregularities must obtain formal whistleblower status by a decision issued by the prosecutor handling the case. The procedure for obtaining protection under the act will be as follows:
- filing a report of a suspected crime,
- the whistleblower being interviewed by a prosecutor,
- a decision granting whistleblower status.
Under the draft, the whistleblower institution will apply only to crimes exhaustively listed in Article 61 of the act, including fraud. The main protection resulting from a decision granting whistleblower status will be the inability to terminate the whistleblower’s employment relationship or change the terms of the employment contract to less favourable ones.
It is worth recalling that, under Article 53 of the Act of 1 March 2018 on Counteracting Money Laundering and Terrorist Financing, obliged institutions, including entrepreneurs making or accepting cash payments exceeding EUR 10,000, must develop and implement procedures for employees or other persons working for the entrepreneur to anonymously report actual or potential violations of the act. Although the Act on Counteracting Money Laundering and Terrorist Financing does not use the term whistleblower, the legislature clearly intended to introduce this institution. Under the act, whistleblower protection procedures must address:
- how reports are made and received, including the person responsible for receiving them;
- how whistleblowers are protected;
- how whistleblowers’ personal data are protected;
- the type and nature of follow-up action after receiving a report, including time limits for resolving the matter.
The aim of the procedures that obliged institutions must implement is to protect whistleblowers from reprisals, discrimination and all other forms of unfair treatment.
Protection of whistleblowers by UOKiK
The Office of Competition and Consumer Protection (UOKiK) has, in a sense, anticipated the Act on Transparency of Public Life and independently implemented a programme to protect whistleblowers. UOKiK’s programme is intended for everyone wishing to notify the state authorities of practices that violate competition rules.
Under Article 3(1) of the Act on Combating Unfair Competition, an act of unfair competition is an act contrary to law or good practice if it threatens or infringes the interests of another entrepreneur or customer.
In particular, copying products, improper labelling, breaching trade secrets, bribery, using unfair advertising methods, inducing termination of a contract or participating in a pyramid selling system may be regarded as acts of unfair competition.
UOKiK’s programme is addressed to:
- employees who know of irregularities committed by their employers,
- entrepreneurs who know of irregularities committed by their counterparties.
A condition for protection is acting in good faith and in the so-called public interest. This means a person reporting irregularities cannot be guided by a particular personal interest: their actions must be motivated by concern for the common good. Good faith concerns the basis of the whistleblower’s action and their mental state, understood as the intention behind the conduct.
Under the UOKiK programme, a whistleblower may report irregularities to the office:
- anonymously, without giving personal details, for example by letter, email or telephone;
- through a third party, for example a professional representative such as an advocate or legal adviser;
- in person, at a meeting with UOKiK staff.
People wishing to report irregularities to UOKiK can use the special helpline at 22 55 60 500 or email [email protected].
According to assurances, in anonymous and in-person reports UOKiK staff will not seek to establish the reporter’s identity. The whistleblower must, of course, provide information about the reported irregularities, above all identifying the entity that breached competition rules and describing the prohibited conduct. UOKiK notes that anonymous reports will be examined particularly thoroughly to determine that the whistleblower acts in good faith and the public interest, rather than simply wishing to inform on someone. For this reason, it recommends attaching all evidence supporting the whistleblower’s claims to a report sent to UOKiK. Providing the necessary evidence will speed up examination of the case and allow it to be handled more efficiently.
UOKiK also announces work to improve whistleblower protection, including a reward system providing specified financial rewards for reporting irregularities.
No protection for an entrepreneur – cases involving violations
UOKiK’s whistleblower protection programme has one significant exception: it will not protect perpetrators of competition-law violations, in particular entrepreneurs and managers. According to UOKiK, those reporting irregularities concerning their own actions must reckon with the possibility of UOKiK opening antitrust proceedings and consequently imposing a fine. Recall that a fine for agreements restricting competition can amount to 10% of turnover in the year before the fine is imposed. For managers, the fine can reach PLN 2,000,000.
In such a case, an entrepreneur party to an agreement restricting competition who wishes to notify UOKiK of irregularities should use UOKiK’s leniency programme.
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Summary
Under the programme’s rules, an entrepreneur who provides UOKiK with information and evidence about an agreement breaching fair competition rules may apply for a waiver or reduction of the fine. If more than one entity applies in the same case, only the first reporter may be fully exempted. A fine reduced under the leniency programme may be cut by a further 30%, so-called leniency plus, if the person provides UOKiK with information about another prohibited agreement breaching competition rules that UOKiK has not yet investigated.
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