New whistlebower protection bill
On 23 November 2022, the Government approved a new Whistleblower Protection Bill implementing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of whistleblowers. The transposition deadline for this directive expired on 17 December 2021, but the previous government failed to pass the previous drafts of this bill. The current bill is now being discussed at the Chamber of Deputies.
According to the Explanatory Memorandum to the bill, the aim of the proposed whistleblower protection legislation is to enable workers in the private and public sectors to safely file whistleblower reports within the framework of compulsorily established internal mechanisms or external mechanisms, and subsequently to protect them from possible retaliation by employers and other entities. The proposed measures are intended not only to protect potential whistleblowers, but also to prevent unlawful conduct in general.
According to the draft Whistleblower Protection Act, designated entities (in addition to public authorities, e.g. employers with at least 50 employees as of 1 January of the relevant calendar year) are obliged to establish an internal whistleblowing system. It is intended to be used to receive notifications from employees, business partners, self-employed persons, volunteers, persons on work experience or internship, and other persons, who become aware of a violation or damage to the public interest within the obliged entity that employs them or with which they are in contact in a work context.
The obliged entity must ensure that the whistleblower has the option to submit the notification through the internal notification system both in writing and orally or, at the request of the whistleblower, also in person. The obliged entity must also designate a competent natural person to receive the notifications, assess their reasonableness, communicate with the notifier within the statutory deadlines, propose to the obliged entity measures to remedy or prevent the unlawful situation, keep records of the data on the notifications received and keep the notifications received for the statutory period of time.
The notification must contain information about the infringement that has occurred or is about to occur at the obliged entity and that has the characteristics of a criminal offence, violates the Whistleblower Protection Act or violates another legal regulation or a regulation of the European Union in a statutory area (e.g. financial services, consumer protection, personal data protection, etc.). The notification must also contain details of the notifier, i.e. name, surname and date of birth, or other information leading to the identity of the notifier. This information is assumed to be true.
Information about the identity of the whistleblower must be strictly protected and may only be shared with the written consent of the whistleblower. Furthermore, the obliged entity must not allow the whistleblower (and other statutory persons) to be subjected to retaliatory measures, i.e. to such acts or omissions of the whistleblower that are triggered by the making of the notification and may cause harm (e.g. termination of the employment relationship, non-renewal of the fixed-term employment relationship, removal from the position of a supervisor, reduction in salary, non-award of a personal bonus, etc.). The person subjected to the retaliatory measure has the right to adequate compensation for non-pecuniary damage, where the burden of proof will be on the obliged entity in the event of litigation. The right to protection from retaliation cannot be waived.
Control over compliance with the obligations of the obliged entities will be exercised by the Ministry of Justice. If the inspection reveals a breach of an obligation, it shall impose on the obliged entity a corrective measure aimed at eliminating the unlawful condition and shall set a reasonable time limit or other conditions to ensure its fulfilment. The Ministry will also be given jurisdiction to deal with offences under the Whistleblower Protection Act.
The law is proposed to take effect on the first day of the second calendar month following the date of its promulgation. In view of the fact that the legislative process is currently in its early stages, it is difficult to estimate when and in what form (wording) the Whistleblower Protection Bill will eventually be promulgated.
Author: Veronika Odrobinová, Martina Šumavská