In Search of a Model for the Legal Protection of a Whistleblower in the Workplace in Poland. A legal and comparative study. Lukasz Bolesta
means a qualifying disclosure (in accordance with the definition included in Article 43B) made by an employee in accordance with the requirements specified in Articles 43C–43H of the Act. These requirements concern the making of disclosure to particular entities ←39 | 40→and the fulfilment of certain conditions. The provisions of the Act provide a number of people to whom wrongdoings may be disclosed, depending on the circumstances.
In accordance with Article 43B of the Act of 1996, “qualifying disclosure” means the disclosure of information which – following the reasonable belief of an employee who makes the disclosure in public interest – will prove one or several of the following circumstances:
1. an offence was committed, is committed, or presumably will be committed;
2. a person failed, fails, or presumably will fail to comply with any legal obligation that he is subject to;
3. there occurred, occurs, or may occur a miscarriage of justice;
4. the health or security of any person was, is, or may be at risk;
5. the environment was, is, or may be damaged; or
6. information that any issue which falls within the scope of any of the above points was, is, or may be deliberately concealed.
In accordance with the above, the disclosed information may turn out to not be true. In order to grant protection to whistleblowers, only a reasonable belief of the wrongdoing occurrence is required. Moreover, we should emphasize that an offence may take place outside of the United Kingdom. It does not matter if other than British law is applied in a case of a wrongdoing.172
The protection will not apply if, while disclosing, a whistleblower commits an offence in the form of breaking the Official Secrets Act of 1989173 or the regulations in force in the public office.174
Moreover, the disclosure of information, in which the claim for keeping the legal professional privilege may be sustained in legal proceedings, does not constitute qualifying disclosure, if it is made by a person who disclosed such information as a result of receiving legal advice.175 Whistleblower will ←40 | 41→not be protected, if they are convicted of committing such an offence or if – on the basis of presented evidence – a court is convinced that the whistleblower committed such an offence.
We should also indicate that the PIDA recognizes as qualifying disclosure only confidential disclosure that is not anonymous, which requires greater trust towards addressees.176 It seems that this measure is aimed at discouraging the anonymous disclosure of wrongdoings, because it may make it impossible to determine significant issues in the scope of the disclosed wrongdoings. Moreover, the confidentiality of the disclosure does not have an absolute character, which enables holding those people liable who disclose information, should their actions turn out to be e.g. malicious.
The PIDA offers the following modes of disclosing information with increasing thresholds of protection:177
1) internal disclosure of information to employers;
2) disclosure of information to an appointed external body (of regulatory character) or a member of Parliament; and
3) a broader disclosure of information e.g. to the police, the media, or a non-governmental organization.178
Whistleblowers are encouraged to first undertake internal actions by means of certain restrictions for disclosing wrongdoings outside of workplace.179 Internal disclosure consists of a whistleblower passing information about perceived wrongdoings on the forum of the organization.180 Such a disclosure will be protected, should the whistleblower truly believe it will prove that a malpractice occurred, occurs, or presumably will occur. Pursuant to Article 43C Paragraph 1a of the Act of 1996, qualifying disclosure occurs, should an employee disclose information to his employer. However, if the employee has justified reasons to think that the wrongdoings concern solely or above all actions of a different person than his employer, or matters ←41 | 42→that a different person than his employer is legally responsible for, then he discloses information to the relevant person.181 On the other hand, Article 43C Paragraph 2 constitutes that the employee who – on the basis of a procedure authorized by the employer – makes qualifying disclosure to other person than the employer, must be treated like a person who makes qualifying disclosure to the employer. The above provisions establish that – as a result of informing the management of the employer about the perceived wrongdoings – the management will take steps to clarify the presented information and eliminate potential threats. The objective is to discourage actions undertaken to harm the institution and enable their early detection.182
The implementation of special internal procedures of disclosure examination by employers should be recognized as a good practice. Even though the PIDA does not impose an obligation to establish such procedures, encouraging employees to report wrongdoings within the organization is in the interest of the employers. A lack of such a procedure may make whistleblowers disclose the issue outside of their workplace.183
Moreover, employees of state bodies will have protection, should they directly inform about their concerns a superior ministry and not their employer. It seems that the objective of the implementation of such regulations is to increase the certainty in the examination of the issue and the elimination of potential wrongdoings. If a whistleblower encounters negative consequences in result of disclosing information in such a way, their claim may be directed against the employer, not against the minister to whom he disclosed information.184
On the other hand, Article 43D of the Act of 1996 constitutes that qualifying disclosure also occurs if it is made during the reception of legal advice. The regulations enable employees to receive legal advice on wrongdoings perceived by them and to receive legal protection from potential negative consequences. When an employee authorizes their lawyer to further ←42 | 43→disclosure of information, e.g. to the media or the employer himself, the actions of the lawyer are considered as undertaken on behalf and for the benefit of the employee.185
The provisions impose more rigorous conditions on employees who disclose information outside of the organization.186 In such a case, the protection is granted to a whistleblower, if they disclose to a prescribed person, indicated in a special register,187 and truly believe that a relevant offence falls within the scope of matters to which such a person was appointed, and that the disclosed information and all included allegations are substantially true. What follows from the above is that whistleblowers may turn to a prescribed person with an issue within the scope of its competences. In this regard, certain institutions should be indicated, such as those that act in areas of finances, health services, environmental protection, insurance, or consumer rights, including local government.188 To obtain legal protection, whistleblowers must have reasonable belief that information and all included allegations are substantially true and relevant for the regulatory body.189 Let us indicate that contacting bodies not in the register is qualified as disclosure to the wide audience, which results in a necessity to fulfil more rigorous conditions.190
However, in a case of disclosure to the wide audience, whistleblowers omit not only their employer but also proper supervisory bodies, and they present observed wrongdoings to e.g. the police or the media in order to popularize the issue and gain special attention.191 The whistleblower when deciding on this path of disclosure – in order to receive protection – must demonstrate the important reasons that prevented him from informing in ←43 | 44→the first place his employer or the supervisory body.192 In such a case, the protection is granted to whistleblowers, if:
1) they have reasonable belief that the disclosed information and all included allegations are substantially true;
2) the disclosure is not for personal gain; and
3) all circumstances suggest that it is reasonable to disclose information, and one of the following conditions is met:
(a) at the moment of disclosure, the employee has reasonable grounds to think that they will suffer harm from the employer if the information is disclosed to this employer or a prescribed person;
(b)