Protection of Whistleblowers (Whistleblowing) – new legislation and important obligations
On 20 June 2023, the long-awaited Act No. 171/2023 Coll., the Whistleblower Protection Act (hereinafter referred to as the “Act”) was published in the Collection of Laws. The Czech Republic has thus completed the process of implementing Directive 2019/1937 of the European Parliament and of the EU Council of 23 October 2019 on the protection of persons who report breaches of European Union law into the Czech law.
The Act shall enter into force on 1 August 2023. For many companies, this is the date on which they must comply with the obligations set out in the Act, in particular the obligation to establish an internal reporting system, leaving them less than a month to comply with this obligation. For other companies, the Act provides additional time in its transitional provisions to establish an internal reporting system, but given the difficulty of setting up comprehensive processes, it is undoubtedly time for them to deal intensively with the preparation.
The purpose of the adoption of the Act is to protect persons in employment and other similar relationships who report facts suggesting that someone has committed an unlawful conduct in a specified manner through compulsorily established internal reporting systems or external reporting systems. These so-called whistleblowers must be protected from potential retaliation by employers and other subjects. In a broader perspective, this legal regulation is intended to contribute to the prevention of an unlawful conduct in general. The Act introduces an obligation to establish internal reporting systems and procedures for reporting and examining the legitimacy of reports for selected employers. Obliged entities thus have the opportunity to learn about and deal with reports of unlawful conduct within the internal system. Failure to comply with the obligations set out in this Act may, in addition to sanctions, lead to the reporting of any unlawful conduct through the external reporting system of the Ministry of Justice of the Czech Republic with all the negative consequences associated with this.
Obligation to establish an internal reporting system
- Obliged entities employing more than 249 employees are obliged to establish an internal reporting system by 1 August 2023.
- Obliged entities employing at least 50 and less than 250 employees are obliged to establish an internal reporting system by 15 December 2023.
Who, what, how?
Whistleblowers are natural persons who have made a report in accordance with the terms of the Act, i.e. in particular employees, business partners, members of bodies of legal entities, job applicants, persons performing professional practice, etc.
Report is information about a possible unlawful conduct that has occurred or is about to occur in the case of a person for whom the whistleblower, even indirectly, has performed or is performing work or other similar activity, or in the case of a person with whom the whistleblower has been or is in contact in connection with the performance of work or other similar activity.
Unlawful conduct is an act that (i) has the characteristics of a criminal offence, (ii) has the characteristics of an offence for which the Act imposes a fine of at least CZK 100,000, (iii) violates the Whistleblower Protection Act, or (iv) violates any other legislation or regulation of the European Union in the listed specific areas.
Retaliation is considered by the Act to be an act or omission in connection with the whistleblower’s work or other similar activity of the whistleblower which was triggered by the whistleblower’s report and which may cause harm to the whistleblower or other specified persons; thus, retaliation is specifically, e.g., termination of employment relationship (notice etc.), reduction of wages, non-renewal of employment relationship, cancellation of an agreement on work activities or agreement to perform work, change of working hours, termination or withdrawal from a contract.
Obligations of the obliged entity
We summarise the most important obligations of the obliged entity:
- to establish an internal reporting system
- to appoint a designated person or persons to receive reports and assess their legitimacy and other related activities (this person proposes measures to the obliged entity to remedy or prevent the unlawful conduct, carries out the instructions of the obliged entity)
- not to allow the whistleblower or persons listed in the Act to be subject to retaliation
- to ensure that the whistleblower is able to submit a report through the internal reporting system, both in writing and orally, or in person at the request of the reporting person (some persons who do not perform work or other similar activities for the obliged entity may be excluded from submitting reports)
- to ensure that the following information is published in a manner allowing remote access:
- on the methods of reporting through the internal reporting system and to the Ministry,
- identification of the designated person, his or her telephone number and e-mail or other delivery address,
- whether the obliged entity excludes the receipt of reports under the Act from selected groups of reporting persons.
- to ensure that the relevant person is advised of his or her rights and obligations arising from the law and to make a record of it
- to ensure that only the relevant person can inspect the submitted reports and that the prohibition on providing information which could defeat or jeopardise the purpose of the report is respected
- to ensure that the legitimacy of the report is assessed by the relevant person
- to ensure that the whistleblower is informed of the report receipt and of the results of the assessment of the report legitimacy
- to ensure that appropriate measures are taken to remedy or prevent the unlawful conduct following the submitted report
- not to penalise the designated person for the proper exercise of his or her activities
Third party delegation, system sharing
For obliged entities, the Act explicitly provides for the possibility to entrust a third party with the management of the internal reporting system. However, this authorisation does not relieve the obliged entities of their liability for fulfilling the obligations relating to compliance with the conditions for the establishment and operation of the internal reporting system laid down by the Act.
Obliged entities, with the exception of public contracting authorities, which on 1 January of the relevant calendar year employed no more than 249 employees, may share the internal reporting system or use the internal reporting system established by another obliged entity if they designate a person competent to carry out the tasks provided for by the Act.
Fines of up to CZK 1,000,000 may be imposed for failure to comply with the obligations stipulated by the Act.
A fine of up to CZK 50,000 may be imposed for submitting a knowingly false report.
Please do not hesitate to contact us if you have any questions or for any consultations regarding the setup of the reporting system, we will be happy to assist you at any time.
WTS Alfery Team, Alfery Hrdina Advokáti