Retaliation and whistleblower protection: what an employer must not do

When a whistleblower is protected

A whistleblower is protected under the Polish Act of 14 June 2024 on the Protection of Whistleblowers (Journal of Laws 2024, item 928) from the moment of making a report or public disclosure, provided that they had reasonable grounds to believe that the information was true at the time of reporting and that it constituted information about a breach of law (Article 6). It is not required that the breach actually occurred. What is required is good faith and a reasonable assessment. An employee who reports what they saw and is wrong about the legal classification remains protected. An employee who reports something they know to be untrue does not.

Protection covers internal reports, external reports (to the Commissioner for Human Rights (RPO) or a public authority) and, under certain conditions, public disclosure. The whistleblower does not have to exhaust the internal route first: they may report directly to an authority (Article 7). The internal channel must therefore compete on quality, not by compulsion.

Catalogue of retaliatory actions

No retaliatory action, nor any attempt or threat of such action, may be taken against a whistleblower (Article 12(1)). The Act lists, by way of example, where the whistleblower is an employee:

• refusal to establish an employment relationship,
• termination with or without notice,
• failure to conclude a fixed-term or open-ended contract after a probationary contract or after a fixed-term contract, where the whistleblower had a reasonable expectation that it would be concluded,
• reduction of remuneration,
• withholding of promotion or being passed over for promotion,
• being passed over for work-related benefits or having them reduced,
• transfer to a lower position,
• suspension from duties,
• transfer of existing duties to another employee,
• an unfavourable change of place of work or working time schedule,
• a negative performance appraisal or a negative reference,
• imposition or application of a disciplinary measure, including a financial penalty,
• coercion, intimidation or exclusion,
• mobbing, discrimination, unfavourable or unfair treatment,
• withholding participation in or being passed over for training that raises qualifications,
• unjustified referral for medical examinations, including psychiatric ones,
• action aimed at making it harder to find future work in a given sector or industry,
• causing financial loss, including economic loss, or loss of income,
• causing other non-material harm, including infringement of personal rights.

The catalogue is open: any direct or indirect act or omission caused by the report which infringes or may infringe the whistleblower's rights or causes them unjustified harm is deemed retaliation. Similar protection applies to persons performing work on a basis other than an employment relationship, including entrepreneurs and persons on civil-law contracts: their contract may not be terminated, their payments withheld or the conclusion of a further contract refused because of the report (Article 13).

Reversed burden of proof

If the employer takes an action from the catalogue against a whistleblower and the whistleblower makes it plausible that the action is retaliation, the burden of proof rests with the employer to show that the action was not retaliation but had objective and duly justified reasons (Article 12(2)). In practice this means that every personnel decision concerning a person who has previously reported a breach must have documentation that will convince a court without reference to the report: periodic appraisals from before the report, restructuring plans, substantive justification. A company that does not know who the whistleblower is, because the identity is protected in the system, is paradoxically in a better position in such a dispute: it can show that the person deciding on the dismissal had no access to information about the report.

Compensation and invalidity of legal acts

A whistleblower against whom retaliation has been taken is entitled to compensation of not less than the average monthly wage in the national economy in the preceding year, as announced by the President of Statistics Poland (GUS), or to damages for non-material harm (Article 14). This is a lower limit, not an upper one; greater loss is compensated in full.

Legal acts aimed at limiting or excluding protection are invalid (Article 11). A clause in an employment contract or in workplace regulations under which the employee undertakes not to report breaches externally is not binding. A contractual provision that makes a bonus conditional on "loyalty" understood as refraining from reporting is invalid too.

Protection extends beyond the whistleblower

The prohibition of retaliation also covers a facilitator and a person connected with the whistleblower, for example a colleague or a family member, if they may experience retaliation (Articles 21 and 22). Also protected is an entity that the whistleblower owns or works for, if it is exposed to sanctions because of the report. An employer who cannot "reach" the whistleblower cannot reach the person who advised them to report either.

The whistleblower does not bear liability for defamation, infringement of personal rights, copyright or trade secrets, or for disclosure of information, if they had reasonable grounds to believe that the report was necessary to reveal the breach (Articles 16 and 17). The only condition concerns the way the information was obtained: it may not constitute a prohibited act.

The other side: a knowingly false report

Protection is not available to a person who reported something untrue knowing it to be so. A person who has suffered harm because of a knowingly false report is entitled to compensation or damages for non-material harm from the whistleblower (Article 15), and such a report is itself an offence punishable by up to 2 years' imprisonment (Article 57). This provision is a safeguard, not a tool: an employer who, instead of investigating the matter, starts with an accusation of a false report should expect a court to treat this as retaliation.

What to do on the organisation's side

1. Limit the circle of people who know the whistleblower's identity to those handling the case. A personnel decision-maker who does not know about the report cannot be guided by it.
2. Document personnel decisions independently of reports. An appraisal, an improvement plan, the justification for a dismissal must stand on their own.
3. Write the prohibition of retaliation into the procedure, together with how to report a suspicion of it, preferably through the same channel, to a different case handler.
4. Train managers. Most retaliation is not a board decision but the reaction of a branch manager who "worked out" who made the report.

In sygnadesk the whistleblower's identity is separated from the content of the case, and uncovering it requires a request approved by a second authorised person and remains in the register of identity disclosure requests. The audit log shows who had access to the case and when, which in a retaliation dispute is evidence that the person taking the personnel decision did not have that access.