After “only” two and a half years’ delay, Poland’s Whistleblower Protection Act will leave Parliament for the President’s desk. Its journey has been bumpy, with emotions running high at the finish. Who spoiled it and who repaired it? Does it properly reflect the spirit of the EU directive?
Employment law among reportable breaches
Directive (EU) 2019/1937 of 23 October 2019 on protecting persons reporting breaches of Union law required national transposition by 17 December 2021. Two and a half years later, the Sejm finally adopted Poland’s Act, but not without controversy.
Article 2 lists reportable areas, including public procurement, money laundering, transport safety, environmental protection, food safety, animal health and welfare, public health, consumer protection, privacy and personal data. The Ministry of Family, Labour and Social Policy wanted to go further by adding “employment law” to the Polish bill.
Given how broad that concept is, the idea immediately seemed precarious. Moreover, contrary to the directive, the government abandoned limiting protection to reports potentially harming the public interest, allowing private-interest reports. The Ombudsman and Labour Inspectorate, which would handle them, could be flooded with reports from employees seeking protection from dismissal.
In practice, any employee could report an employer anonymously. Whether employment law was actually breached or the employee merely wanted to cause trouble would essentially be immaterial. Protection requires reasonable grounds to believe the reported information was true when reported. But how, and against what criteria, would those reasonable grounds be verified? That remains unknown.
During legislative work, the position of a body with much to say about employee protection—the National Labour Inspectorate—was notably overlooked. On 13 March 2024 it criticised including employment law. Besides questioning removal of the public-interest requirement, it warned of “a serious risk that the proposed solutions will be used in employment disputes solely to obtain protection and will significantly increase complaints to the Inspectorate, including inherently contentious matters in which inspectors have limited powers, such as discrimination and workplace bullying, with final resolution belonging to employment courts”.
The parliamentary dispute over scope
The bill reached the Senate, where senators tried to repair it by removing employment law. They noted that the directive did not include that field and rightly observed that the omission was deliberate: EU employment law and Poland’s Labour Code already contain safeguards against retaliation for reporting employment breaches. Existing Polish routes also allow reporting workplace violations, for example an employee complaint to the Labour Inspectorate.
The amended bill returned to the Sejm and was referred to the Social Policy and Family Committee. That was where emotions really began.
The minister attended and opened by saying the Senate’s bill “protects pigs more than Polish workers”. In her view, removing employment law meant workers reporting health and safety breaches, harassment, discrimination and unequal treatment would not be protected, although she considered their inclusion natural. Meanwhile, farm workers reporting animal mistreatment would be protected.
This did not convince MPs, who accepted the Senate amendments on 14 June 2024. Consequently, the Act sent to the President will not protect people reporting employment law breaches.
Should employment law be covered?
The minister’s subsequent comment on X cannot pass unnoticed. She said MPs voted “against working people, pulling the teeth from whistleblower protection”. But did the drafters themselves pull its teeth and throw the baby out with the bathwater?
Protecting reports of employment law breaches generally was far too broad. Would it not have been better to specify particular aspects? Not harassment, unequal treatment or discrimination: workers reporting these already enjoy anti-retaliation protection under Article 183e of the Labour Code. Such breaches also generally concern individual private interests rather than the public interest the directive should protect. As the Inspectorate rightly noted, they should be resolved in court.
The main reason advanced in parliamentary debate was protection for health and safety whistleblowers. Would expressly listing “occupational health and safety” as a reportable category not have been better? Such wording would very probably have been uncontroversial and supported across party lines, particularly given recent media reports of serious safety breaches, including at the Olefiny III petrochemical complex construction site near Płock.
Including health and safety would not mean workers previously could not report those breaches. They could, but without the Act’s anonymity and therefore potentially exposed to unpleasant consequences from employers.
Removing the overly broad employment law category was therefore justified in one respect: it protects the Ombudsman, Inspectorate and employers from a flood of reports that should not arise. Genuine matters warranting action by competent bodies or courts can be reported under existing law without fear of retaliation. On the other hand, the Act has lost a tooth concerning health and safety reports, where, as rightly noted in committee, a “conspiracy of silence” often prevails among workers fearing dismissal.
