In Search of a Model for the Legal Protection of a Whistleblower in the Workplace in Poland. A legal and comparative study. Lukasz Bolesta
the objective of Article 43F – disclosure to a prescribed person – concerning a given offence, the employee has justified reasons to think that proofs connected to the given offence will presumably be concealed or destroyed if disclosed to the employer; or
(c) the employee previously disclosed the same information to the employer or to the prescribed person.
When determining whether – in all circumstances of the issue – it was reasonable to disclose information, courts consider, among other things, the identity of the person to whom the information was disclosed, the significance of the offence, and whether it still occurs or presumably will occur in the future.193 Noteworthy, the required degree of the offence’s significance will be lower when the disclosure is made to the police than if the same information is disclosed to the media.194
The provisions of the Act of 1996 also guarantee protection in the case of disclosing information that does not meet the above conditions, if it concerns exceptionally serious offenses. In accordance with Article 43H of the Act, the qualifying disclosure will take place if the employee:
– has justified reasons to think that disclosed information and all included allegations are substantially true;
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– does not disclose information for personal gain;
– discloses an offence of exceptionally serious character and it is reasonable to disclose information in all circumstances of the issue.
On the other hand, Paragraph 2 of the Article constitutes that – during the examination whether the disclosure of information in all circumstances of the issue is reasonable –the identity of the person to whom the information is disclosed is specifically considered; e.g. the police or the press. The provisions do not contain any particular guidelines on the basis of which a given offence may be recognized as “particularly serious.” This issue is decided individually for every case.195
In accordance with the British legislation, a dismissal of a person disclosing cases of violations will be recognized as unfair if its only or main reason is the fact that a whistleblower made a protected disclosure. Moreover, employees are also protected from suffering any other detriment related to the whistleblowing activity, e.g. making threats or limiting promotion opportunities. People who make protected disclosures in accordance with the provisions of the PIDA and were dismissed or suffered other detriment due to their whistleblowing activity may file a complaint to employment tribunals, which deal with the issues of whistleblowers in the United Kingdom. In their jurisprudence, employment tribunals are limited to deciding on the occurrence of the detriment of whistleblowers and on the amount of due compensation; i.e. they do not decide on the wrongdoings identified by employees.196
In accordance with Article 47B introduced by the PIDA to the Act of 1996, an employee has the right for his situation not to deteriorate due to any action or any deliberate negligence on the part of the employer, ←45 | 46→undertaken on the basis of the protected disclosure made by the employee. Noteworthy, the employer will be also held responsible in a case when the employee, after informing about wrongdoings, is exposed to detriment colleagues, e.g. intimidation or harassment. Such an activity is treated as also made by the employer.197 It does not matter if it happened with the knowledge or permission of the employer.198 The employer may defend himself by indicating that he undertook all reasonable steps to avoid detriment due to the abovementioned actions.199
If the employment tribunal recognizes the complaint of an employee as valid, it may grant him compensation from the employer.200 Its amount is established based on what is just and right in all circumstances of the issue, taking into consideration the violation that is the subject of the complaint and also every detriment suffered by the whistleblower due to the deterioration of his situation.201 Compensation should cover in particular reasonable costs bore by the whistleblower or lost profits – e.g. the remuneration for the unemployment period – which he could expect if he did not lose the job or did not experience other victimized actions of the employer.202 Noteworthy, recognized compensation is not subject to the statutory limit that is applied in standard claims of unjustified dismissal.203 However, we should remember that the employment tribunal has the right to reduce all compensations even by 25 %, if it deems that the protected disclosure of information was not made in good faith.204 In the case of litigation, the employer must provide proof. He must explain in front of the tribunal the reasons for which he undertook negative activities towards the whistleblower and prove that they were not the consequence of the disclosure of information.205
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Another European country that has regulations on whistleblower protection is Romania. The relevant act is the Law No. 571/2004 regarding the protection of the staff of the public authorities, public institutions, and other units that notifies breaches of the law.206 This regulation is the result of actions undertaken to fight corruption in public administration. The provisions of the Law No. 571/2004 enable one the disclosure of a broad scope of wrongdoings and provide protection from retaliation. However, this protection is limited to individuals of the public sector.207 Although, private entities have the possibility of implementing solutions from the public sector in their internal regulations.208
Article 3 of the Law No. 571/2004 includes a definition of disclosure in public interest, which should be recognized as disclosing in good faith the case of unlawful activity, violation of ethical professional standards or the principles of good administration, productivity, effectivity, economy, and transparency. Not all disclosed information may be protected.209 Pursuant to Article 5 of the Law No. 571/2004, the disclosed wrongdoings may concern:
a) actions of corruptive character or actions connected to such or to ones directly related to them, frauds, breaches of responsibilities, or professional responsibilities related to the breach;
b) unlawful actions against the financial interest of the European Community;
c) practices or treatment which privileges or discriminates individuals listed in Article 2 of the Law;
d) breaking of provisions concerning incompatibilitas and the conflict of interest;
e) the abuse of material and human resources;
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f) biased political activity by means of occupied office, except for people elected or appointed on political rules;
g) breaking of the law on access to information and transparency of decisions;
h) breaking of provisions concerning the public procurement and nonrefundable financing;
i) incompetence and negligence of responsibilities;
j) subjective evaluation of the personnel during the process of recruitment, selection, promotion, degradation, and dismissal;
k) breaking of administrative procedures or establishing internal procedures that are against the law;
l) issuing administrative acts or other acts in the interest of a particular group or a clientele;
m) flawed or fraudulent management of property of public authorities, public institutions, or other establishments provided in Article 2 of the Law;
n) breaking of other provisions issued in order to achieve the principle of good administration or to protect the public interest.
The provisions of the Act enable whistleblowers to choose the path of disclosing wrongdoings. It is possible to use any channel in all circumstances.210 Their register was included in Article 6 of the Law No. 571/2004. Namely, it is possible to disclose information:
– directly to the supervisor of a person who broke the law;
– to the head of a public authority, institution, or budget unit, in which the person who violated the law is employed or in which an illegal practice was disclosed, even if